Federal Court Confirms Delta 8 is Legal

Federal Court Confirms Delta 8 is Legal

Almost a year ago, the HIA issued a statement of support for the whole hemp plant and an accompanying legal opinion a clear reading of the 2018 Farm Bill showed that Delta-8 THC and other hemp cannabinoids were federally legal (as in: not a controlled substance). Our statement also emphasized the need for industry leadership in the form of strict safety and potency testing standards, responsible marketing, age limits, transparent labeling, and other self-regulatory measures in order to safeguard consumers, while laying out some of the obvious reasons that state bans were likely to be ineffective and even counterproductive.

While that position was met with some skepticism at the time, it was only about four months later that the DEA’s Drug and Chemical Evaluation Section issued a public determination that confirmed the Hemp Industries Association’s legal opinion that Delta-8 THC is no longer federally scheduled.

Then, last week, the U.S. Court of Appeals for the Ninth Circuit held (in AK Futures LLC v. Boyd Street Distro, LLC) that the plain text of the 2018 Farm Bill made it clear that products containing delta-8 THC are lawful, stating:

“Importantly, the only statutory metric for distinguishing [CSA] controlled marijuana from legal hemp is the delta-9 THC concentration level. In addition, the definition extends beyond just the plant to ‘all derivatives, extracts, [and] cannabinoids. This seemingly extends to downstream products and substances…”

It is important to be aware that this is only the law of the land at the federal level and only in the states where this Court has authority: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington. Almost all of those states have taken action to restrict or ban Delta-8 and other hemp cannabinoids, and this federal opinion has no bearing on those states’ laws.

So, mostly it seems a symbolic victory, unlikely to change much in the near term (outside of the courtroom). As always, be sure you are aware of the local and state laws and regulations for any jurisdiction in which you do business. Advised by legal counsel, proceed with caution, keeping in mind that the regulatory and legal landscape is always shifting.

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