A federal court in California says that delta 8 THC is a federally legal substance, and that only Congress can change that by amending the 2018 Farm Bill that codifies the legality of hemp derivatives.
The unanimous decision by a three-judge panel of the 9th U.S. Circuit Court of Appeals in California was filed May 19. Oral arguments were conducted in March. The case revolved around a copyright dispute between two cannabis vape sellers. One company said the other had no copyright protection because delta 8 THC is federally illegal. The U.S. District Court for Central California disagreed and granted an injunction.
The 9th Circuit ruling upheld the district court’s decision and affirms that hemp-derived substances are not covered by the Controlled Substances Act unless they contain 0.3 percent or more delta 9 THC. That is the definition used in the Farm Bill, and it includes all “derivatives, extracts and cannabinoids.”
The court’s decision dampens speculation that the Drug Enforcement Administration (DEA) could crack down on manufacturers and sellers of delta 8. Commercially sold delta 8 THC isn’t extracted whole from cannabis plants. Rather, it’s manufactured in a lab by altering hemp-derived CBD with a chemical catalyst. As long as the final product doesn’t contain an illegal amount of delta 9 THC, the court says it is a legal hemp product.
If Congress erred by creating a loophole for delta 8, said the court, “it is for Congress to fix its mistake.” Lawmakers could amend the 2018 Farm Bill, or write superseding legislation to redefine the legality of delta 8 and the other hemp-derived psychoactive cannabinoids currently in vogue, like delta 10 THC, HHC, and THC-O.
“Regardless of the wisdom of legalizing delta-8 THC products, this Court will not substitute its own policy judgment for that of Congress,” wrote Judge D. Michael Fisher in the decision. Judges Andrew Kleinfeld and Mark Bennett also served on the panel. According to Marijuana Moment, all three were appointed to the court by Republican presidents.
The ruling gives some cover to sellers of delta 8, which are largely vape shops, smoke and head shops, convenience stores and online retailers. However, it doesn’t prevent states from passing their own laws banning sales or possession of delta 8, or regulating it through a state-controlled dispensary system. Many have done just that, often with the support of the regulated cannabis industry, which views delta 8 THC as a problematic competitor.
Although the Farm Bill gave the FDA authority to regulate sales of CBD and other hemp-derived cannabinoids, the agency has not attempted yet to create rules to do so. The FDA has used its authority as drug regulator to issue warning letters to some delta 8 manufacturers for making illegal health claims about their products.