US appeals court: Hemp-derived delta-8 THC products are ‘lawful’

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(This story has been updated to reflect that Boyd Street Distro likely won’t appeal the ruling.)

Delta-8 THC derived from hemp is “lawful” and eligible for trademark protection, a federal appeals court ruled in a vaping dispute.

The 9th Circuit Court of Appeals said in its ruling Thursday that because Congress legalized not just hemp but its “derivatives” and “extracts” in the 2018 Farm Bill, delta-8 THC is legal if it is derived from a hemp extract – in this case, CBD.

The ruling gives delta-8 vape maker AK Futures another opportunity to block fellow California company Boyd Street Distro from allegedly selling counterfeit versions of AK Futures’ “Cake” vapes containing delta-8 THC.

The three-judge appeals panel sided with AK Futures and said that delta-8 THC is not a controlled substance under federal law if it comes from hemp.

“Regardless of the wisdom of legalizing delta-8 THC products, this court will not substitute its own policy judgment for that of Congress,” Judge D. Michael Fisher wrote.

However, the ruling does not address the legality of selling consumable delta-8 THC products.

Though Congress legalized hemp derivatives such as delta-8 THC, it also directed the U.S. Food and Drug Administration to oversee how those products could be sold.

So far, the FDA has declined to authorize any cannabinoid products without a prescription, and the agency issued a consumer alert last September warning saying that delta-8 THC “may have potentially harmful by-products (contaminants) due to the chemicals used in the process.”

The confusion over delta-8 THC’s legality under federal law has prompted many states (including California) to limit or restrict how it can be sold.

The California vape case started last year, when AK Futures of Santa Ana sued Boyd Street of Los Angeles for allegedly selling counterfeit vapes and asked a court to block its sales.

Boyd Street argued that delta-8 THC is illegal under federal law and therefore ineligible for intellectual-property protection.

The appeals judges disagreed.

“If Boyd Street is correct, and Congress inadvertently created a loophole legalizing vaping products containing delta-8 THC, then it is for Congress to fix its mistake,” the judges wrote.

They went on to criticize Boyd Street for arguing both that delta-8 THC is unsafe and that the company shouldn’t be stopped from selling it.

“Agreeing with Boyd Street at this stage would not keep delta-8 THC products off of the market, rather it would let a store continue to sell counterfeit versions of unknown origin,” the judges wrote.

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Delta-8 THC is an isomer of the psychoactive cannabinoid that occurs naturally in the cannabis plant, delta-9 THC.

Delta-8 THC is rare in nature but can be easily synthesized from CBD, giving rise to products that offer intoxicating effects without needing to be sourced from marijuana, which isn’t legal in all states and remains illegal under federal law.

An attorney for Boyd Street told the San Francisco Chronicle that the company is in the process of settling the trademark claim and likely won’t appeal the ruling.

Hemp Editor Kristen Nichols can be reached at