The Ninth Circuit Leaves Open the Delta-8 THC Legal Loophole in an Intellectual Property Dispute

The Ninth Circuit Leaves Open the Delta-8 THC Legal Loophole in an Intellectual Property Dispute
CANNANNEW REPORT

Jodi Green, Delfina Homen Miller Nash LLP In the first federal appellate ruling on delta-8 THC, the Ninth Circuit Court of Appeals deemed the substance legal—at least for purposes of trademark protection—concluding that if “Congress inadvertently created a loophole legalizing vaping products containing delta-8 THC, then it is for Congress to fix its mistake.” AK Futures LLC v. Boyd St. Distro, LLC, No. 21-56133, 2022 WL 1574222 (9th Cir. May 19, 2022). While the ruling is a win for those seeking trademark protection for hemp-derived products, the ruling should not be viewed as an unlimited license to possess, manufacture, or sell delta-8. As discussed below, the limitations of the case are equally important. It Starts With Science Because the legality of delta-8 is the crux of the dispute, the court started its analysis with the chemistry context of delta-8 THC (tetrahydrocannabinol). Delta-8 is one of hundreds of chemical compounds, or cannabinoids, found in the plant cannabis sativa L. The most familiar cannabinoid is delta-9 THC—a psychoactive compound naturally-occurring in the cannabis plant, which produces the “high” commonly associated with cannabis. Another familiar cannabis compound is CBD (cannabidiol), which does not have psychoactive qualities. Under the 2018 Farm Bill (a/k/a the Agriculture Improvement Act of 2018), cannabis products with not more than 0.3% delta-9 THC are removed from the federal Controlled Substances Act (CSA). This exemption would include CBD (unless integrated into a product with more than 0.3% THC). Like its cousin delta-9 THC, delta-8 THC can elicit a euphoric effect when taken in sufficient quantities. But because delta-8 naturally occurs in tiny amounts, it cannot be economically extracted from the plant alone. Instead, delta-8 is converted from CBD in a lab using solvents and acids. It is then used in vape and edible products. In September 2021, the DEA issued a non-binding…

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Source : The Ninth Circuit Leaves Open the Delta-8 THC Legal Loophole in an Intellectual Property Dispute

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