Just last week, the U.S. Court of Appeals for the Ninth Circuit affirmed a lower court’s holding that the 2018 Farm Bill legalized delta-8 THC products derived from hemp. In the Ninth Circuit’s view, “the plain and unambiguous text of the Farm [Bill] compels the conclusion that the delta-8 THC products before us are lawful.” Specifically, “the only statutory metric for distinguishing controlled marijuana from legal hemp is the delta-9 THC concentration level.”
The case at issue was an intellectual property dispute that required the courts to consider the legality of delta-8 products. The plaintiff-appellee, AK Futures LLC, brought a copyright and trademark infringement suit against Boyd Street Distro, LLC. In its defense, Boyd Street alleged that AK Futures did not have “protectible trademarks” for its delta-8 products “because delta-8 THC remains illegal under federal law.”
In its defense, Boyd Street argued that the Drug Enforcement Administration (DEA) continues to consider delta-8 THC an unlawful substance under its interpretation of the 2018 Farm Bill, “because of its method of manufacture.” While disagreeing with Boyd Street’s characterization of the DEA stance, the Ninth Circuit clarified that it “need[ed] not consider the agency’s interpretation because [7 U.S.C.] § 1639o is unambiguous and
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