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Ninth Circuit Rules Hemp-Derived Delta-8 THC is Federally Legal

On May 19, 2022, the Ninth Circuit Court of Appeals issued an unexpected ruling that hemp-derived delta-8 THC falls within the definition of “hemp” under the 2018 Farm Bill. The Court’s decision in AK Futures LLC v. Boyd St. Distro, LLC, No. 21-56133, 2022 U.S. App. LEXIS 13526, affirmed a preliminary injunction granted by the district court in favor of the appellant, finding that its Cake-branded delta-8 THC vape products are legal under the 2018 Farm Bill, and that the appellant is therefore entitled to “traditional” federal protections that include trademark protection under the federal Lanham Act.

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This decision has broad implications for the future of delta-8 THC as federal and state authorities grapple with the sudden popularity of these unregulated intoxicating products. This article examines the underlying dispute over delta-8 THC’s federal legality, and the AK Futures opinion and its likely impact on the hemp and marijuana industries, as well as on the insurance companies that insure them.

Eighteen months ago, most cannabis industry experts anticipated that the cannabinoids CBG (cannabigerol) or CBN (cannabinol) would become the next popular “novel” cannabinoid to follow the explosive popularity of CBD (cannabidiol). The sudden popularity of hemp-derived delta-8 THC was largely a surprise, driven by media reports that it allows for a “legal high.” Delta-8 THC products have quickly become a popular alternative to heavily regulated and more expensive marijuana products that have higher concentrations of delta-9 THC, the primary psychoactive and intoxicating cannabinoid in marijuana.

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Delta-8 THC also is psychoactive and intoxicating, similar to delta-9 THC. The two cannabinoids are molecularly identical but for the placement of one double bond. Studies around delta-8 THC are limited, but the present consensus is that it has about two thirds of the intoxicating potency when compared with delta-9 THC. The National Center for Biological Information describes delta-8 THC as having antiemetic, anxiolytic, analgesic, appetite-stimulating and neuroprotective properties.

Ninth Circuit Rules Hemp-Derived Delta-8 THC is Federally Legal

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