It’s About Time: Federal Court Addresses Delta-8

Delta 8 tetrahydrocannabinol (“THC”), an intoxicating type of THC typically derived from hemp-derived cannabidiol (aka “CBD”), has been on the middle of quite a few sizzling button points since its arrival within the broader hemp product market final yr. 

We now have tracked those issues as they’ve developed.  Like many issues within the hemp-derived world, federal courts and regulatory companies have struggled to maintain up with the developments available in the market, and Delta-8 THC is on the forefront.  However not too long ago, the Ninth Circuit Court of Appeals (the “Court”) in a copyright and trademark infringement case known as AK Futures LLC v. Boyd Road Distro, LLC, issued a strongly-worded opinion for publication that gives steerage on how different courts can and will deal with Delta-8 THC.  The Court’s opinion could also be discovered here

The core subject on enchantment was whether or not Delta-8 THC is a authorized product beneath the 2018 Farm Invoice.  Plaintiff AK Futures LLC (“AK”), an e-cigarette and vaping product producer, sued Boyd Road Distro, LLC (“Boyd Street”) in the US District Court for the Central District of California for copyright and trademark infringement.  AK alleged that Boyd Road bought counterfeit variations of its Delta-8 THC merchandise, and it requested the District Court to order Boyd Road to cease.  The District Court dominated in favor of AK, holding that the 2018 Farm Invoice legalized delta-8 THC merchandise, and Boyd Road appealed.  On enchantment, Boyd Road didn’t deny promoting the counterfeit merchandise however as a substitute argued that it couldn’t have infringed on any copyrights or emblems as a result of (i) copyrights and emblems can solely defend authorized merchandise and (ii) Delta-8 THC isn’t a authorized product. 

The Court disagreed with Boyd Road and affirmed the District Court’s order.  In affirming the District Court, the Court famous that (i) hemp-derived Delta-8 THC that meets the Delta-9 THC focus necessities of the 2018 Farm Invoice is authorized, (ii) any competing regulatory interpretation from, e.g., the Drug Enforcement Administration, wouldn’t be thought of as a result of the statutory textual content was clear and unambiguous, and (iii) if Delta-8 THC was the product of some unintended loophole within the 2018 Farm Invoice, that was an issue for the US Congress to handle, not the Courts.

The Court’s language was sturdy and to the purpose, and it’ll function a information for different courts across the nation grappling with these points.  That stated, the Court’s opinion isn’t binding authority on courts throughout the nation, and the potential of different interpretations stays. 

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