Ninth Circuit Rules US Hemp Legalization Means Some Concentrated THC Products are Legal Too

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In 2018, the United States Congress approved a farm bill, later signed into law by President Donald Trump, that included legalization of hemp farming. Hemp is a type of the cannabis plant that — unlike marijuana — cannot make you high because it has a low amount of tetrahydrocannabinol (THC).

Here is a new development. A Thursday opinion by the Ninth Circuit Appellate Court of the US court system concluded that along with hemp farming legalization came legalization of combining small amounts of delta-8 THC found in hemp plants into concentrates that have the ability to create psychoactive effects. While the farm bill language limited the concentration of delta-9 THC from hemp, it did not mention delta-8 THC that can be found in lesser amounts in the plant.

The court’s decision in the case AK Futures v. Boyd Street Distro focuses on the definition of hemp in the farm bill. Here is that definition:

The term ‘hemp’ means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 [THC] concentration of not more than 0.3 percent on a dry weight basis.

From there, the court followed the direct course of reading comprehension to conclude that it is legal to concentrate and include in e-cigarette and vaping products delta-8 THC obtained from hemp. This means, the decision stated, that AK Futures’ products including delta-8 THC appears to be “lawful under the plain text of the Farm Act.” It thus follows, the decision concludes, that the company could receive trademark protection — at issue in the case — for those products. Congress’s wording in the farm bill clearly allows such, and, the court noted, if Congress allowed such “inadvertently,” then Congress can “fix its mistake” if it so chooses. Otherwise and in the meantime, the law is the law.

Hopefully, Congress lets the law remain as is. The war on drugs has for decades been a great threat to freedom and excuse for the growth of government power. Instead of eliminating retrenchments in the drug war, Congress should be looking for new retrenchments to enact, leading to the ultimate action of declaring the entire drug war over for good.

The court’s decision does not address state and local laws regarding hemp, marijuana, or THC.

Rob Egelco wrote more about the court’s decision and its context in a San Francisco Chronicle article you can read here.


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