Hemp-derived Delta-8 THC is Lawful
by Nicole Rash – Gleam Law
May 27, 2022 — On Thursday, May 19, 2022, The US 9th Circuit Court of Appeals said in its ruling that Delta-8 THC is eligible for trademark protections as long as the Delta-8 THC is derived from a hemp extract. AK Futures LLC v. Boyd Street Disco, D.C. No. 8:21-cv-01027-JVS-ADS (9d. Cir. 2022). Delta-8 THC is an isomer of the psychoactive cannabinoid that occurs naturally in the cannabis plant, Delta-9 THC. Although Delta-8 THC is rare in nature, it can be easily synthesized from Cannabidiol (CBD), giving rise to products that offer intoxicating effects without needing to be sourced from cannabis. Kristen Nicholas, US appeals court: Hemp-derived Delta-8 THC products are ‘lawful’, MJBizDaily, May 20, 2022.
This ruling is derived from a dispute between a Delta-8 vape maker, AK Futures, and a company, Boyd Street Distro, who allegedly sells counterfeit versions of AK Futures’ “Cake” vapes containing Delta-8 THC. Id. Boyd Street Disco argued that because Delta-8 THC is illegal under federal law, it is therefore ineligible for intellectual property protection. Id. The appellate judges disagreed, stating that “If Boyd Street is correct, and Congress inadvertently created a loophole legalizing vaping products containing Delta-8 THC, then it is for Congress to fix its mistakes.” Id. The judges further stated, “agreeing with Boyd Street at this stage would not keep Delta-8 THC products off the market, rather it would let a store continue to sell counterfeit versions of unknown origin.” Id.
The court found that due to the 2018 Farm Bill, which explicitly preserved U.S. Food and Drug Administration (FDA) authority over hemp products, Congress legalized not just hemp but its derivatives and extracts. Id. While this ruling highlights that Delta-8 THC is allowed trademark privileges, the court did not address the legality of selling consumable Delta-8 THC products, causing confusion among the States. We may not have all the answers about Delta-8 THC’s federal status, but we do know that if you have a Delta-8 THC product, you should consider registering the trademarks with the United States Patent and Trademark Office (USPTO) to protect your hard-earned brand equity. If you would like to know more about trademarking your products, its advantages, and protections, contact one of our Cannabis trademark lawyers today!