A panel of the U.S. Court of Appeals for the Ninth Circuit tentatively ruled on May 19, 2022, that hemp-derived delta-8 THC products are legal. This ruling follows a lawsuit in which AK Futures, an e-cigarette, and vaping products manufacturer, claimed that Boyd Street Distro, a Los Angeles smoke products wholesaler, was committing copyright and trademark infringement by selling counterfeit versions of its branded products that contain delta-8 THC. The trial court entered a preliminary injunction to prevent further sale of such products by Boyd. On appeal, Boyd Street Distro argued that AK Futures could not own a valid trademark on the products at issue because federal law prohibits the sale and possession of delta-8 THC. The Agriculture Improvement Act of 2018 (Farm Bill) legalized the production of hemp, which is defined to mean any part of the cannabis sativa l. plant that contains not more than 0.3 percent delta-9 THC on a dry weight basis. Any part of, or products derived from, cannabis sativa l. that contain more than 0.3 percent delta-9 THC on a dry weight basis are considered marijuana, which remains illegal to manufacture, distribute, or dispense under the federal Controlled Substances Act. The court said the Farm Bill “is silent with regard to delta-8 THC” and that “the delta-8 THC in AK Futures’ [products] appears to fit comfortably within the statutory definition of hemp.” Therefore, the court upheld the preliminary injunction and remanded the case for further proceedings.
Read the court’s full opinion here.