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Court: Hemp derived Delta-8 THC is still hemp

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A three-judge panel for the Ninth Circuit Court of Appeals rejected arguments that delta-8 THC products chemically synthesized from hemp-derived CBD fall outside the scope of the 2018 Farm Bill.

Actors in the case AK Futures LLC v. Boyd Street Distro, LLC. asked the court to protect the brands for its ∆-8 THC products. The defendants in the case argued that the company’s trademarks were not protected, because the 2018 Farm Bill was never intended to legalize such products for human consumption.

The three-judge panel was not persuaded by the defendant’s arguments, opining: “[The defendant] effectively asks us to recognize the following limitation: that the substances legalized by the farm act must be suitable for an industrial purpose, not for human consumption. … [But] this limitation does not appear in the definition of hemp, nor in its exemption from the Act of Controlled Substances. ”

Onus is on Congress to make definitions

The opinion went on to say: “Instead of the wisdom of legalizing [ingestible] ∆-8 THC products, this Court will not substitute its own policy judgment for that of Congress. If [the defendant] is correct, and Congress has inadvertently created a loophole legalizing vaping products that contain delta-8 THC, so it’s up to Congress to fix their mistake.”

The Court also rejected the argument that ∆-8 THC products were outside the scope of the Act because many such products are the result of chemical synthesis and are not extracted directly from hemp plants (which contain only nominal amount of ∆-8 THC). ).

The judges felt that the process used to manufacture the finished product was irrelevant, as long as it was originally obtained from hemp or hemp-derived CBD. “[T]The source of the product – not the manufacturing method – is the determining factor in determining whether a product is synthetic,” he ruled.

The provisions of the 2018 Act explicitly legalize the possession of cannabinoids “that are natural components” of hemp, but “has no impact on the control status of synthetically derived cannabinoids”. The original amendment to the 2014 Hemp Farm Bill, enacted by President Obama, was less clear on the status of various cannabinoids.

The laboratories find the potential of the product mislabeled

Cannabis consumer advocacy group NORML has advised caution regarding the safety of commercially available hemp-derived ∆-8 THC products because neither the products nor their manufacturing processes are regulated. Laboratory analysis of unregulated ∆-8 products have consistently found that they contain lower levels of the compound than advertised on product labels. Some products have also been found to contain heavy metal contaminants and cutting agents without a label.

In response to the ruling, attorney Garrett Graff – whose firm specializes in hemp-related issues – told New Frontier Data: “I’m not sure that this opinion will change much of the cannabinoid landscape. The companies that sell hemp-derived cannabinoids, such as ∆-8 THC, were already encouraged to do so, despite regulatory uncertainties.

“These companies do not necessarily need the court’s opinion to feel encouraged to do so. That said, even with this court’s position under federal law, this opinion does not necessarily change the laws of states which have affirmatively regulated (or banned) ∆-8 THC and other intoxicating cannabinoids. Those state-level regulations also present potential legality challenges.”

While several states have recently moved to ban the sale of ∆-8 hemp-derived products, many others remain largely silent on the issue..

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