AUTHOR
Susan Burns is a cannabis business lawyer in St. Paul, Minnesota and is listed among the Top 200 Cannabis Lawyers.
She may be reached at susan@sburnslegal.com.
The 9th Circuit and Delta-8 THC
In its recent ruling in AK Futures LLC v. Boyd Street Distro, LLC, the 9th Circuit held that the plain and unambiguous text of the 2018 Farm Bill compels the conclusion that the delta-8 THC products of AK Futures were lawful.
The Court opined that the relevant portion of the Farm Bill removes “hemp” from the definition of marijuana in the Controlled Substances Act, and further that the delta-8 THC in question fit comfortably within the statutory definition of “hemp”—i.e., it was a derivative, extract, or cannabinoid originating from the cannabis plant that contained “not more than 0.3 percent” delta-9 THC.
The panel wrote that because the Farm Bill’s definition of hemp is not ambiguous, the panel did not consider the Drug Enforcement Agency’s interpretation, and even if it did, the agency’s view of the Farm Bill’s plain text aligned with the Court’s own.
In the Court’s opinion, in my view the correct opinion, a straightforward reading of 7 U.S.C.S. § 1639o is that the definition of hemp is applicable to all products that are sourced from the cannabis plant, contain no more than 0.3 percent delta-9 THC, and can be called a derivative, extract, cannabinoid, or one of the other enumerated terms.
The only statutory metric for distinguishing 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. 7 U.S.C.S. § 1639o(1). The use of “all” indicates a sweeping statutory reach. This seemingly extends to downstream products and substances, so long as their delta-9 THC concentration does not exceed the statutory threshold.
According to the Court, 7 U.S.C.S. § 1639o is unambiguous and precludes a distinction based on manufacturing method. Clear statutory text overrides a contrary agency interpretation. The Farm Act’s definition of hemp does not limit its application according to the manner by which derivatives, extracts, and cannabinoids are produced. Rather, it expressly applies to “all” downstream products so long as they do not cross the 0.3 percent delta-9 THC threshold. 7 U.S.C. § 1639o(1). While this statutory definition is broad, its breadth does not make it ambiguous.
State Bans on Delta-8 THC
Delta-8 is a form of tetrahydrocannabinol (THC). Delta-8 is an isomer of delta-9 THC, which means it has the same molecular formula as Delta-9, but the atoms are arranged differently.
Delta-8 is psychoactive but considered to be less so than Delta-9. It is also said to have a lower chance of causing anxiety and other common side effects of delta-9 THC, which is one of the reasons for its popularity. The fact that Delta-8 provides a “legal high” has led to it being declared illegal in 13 states.
While there has been debate about whether Delta-8 should be declared synthetic and not legal, the 9th Circuit clearly concludes it is a hemp derivative and, therefore, legal. If hemp derivatives such as Delta-8 are synthetic, one could argue that creating any new cannabinoid from another cannabinoid makes it synthetic because it all requires processing.
The debate of synthetic vs. non-synthetic should be set aside in favor or regulation.
D8 and other cannabinoids should be regulated, not banned.
The reported adverse effects from, and objections to, Delta-8 are the result of not being regulated. Because it is legal under the 2018 Farm Bill, but the legislation only refers to Delta-9 THC, careless manufacturers have been able to produce products containing high levels of Delta-8. Unlike other hemp derivatives, there is no regulation on product, manufacturing, labeling and distribution. Many retailers are not educated on the properties, effects, and proper use. The result is that consumers may purchase Delta-8 that contains undesirable additives, and they may take too much of it, causing undesired effects.
However, banning Delta-8 in a particular state does not protect consumers, it only serves to tee up a long game of Whac-A-Mole, a game in which moles pop up, and players must whack them with a mallet. The game starts at a slow pace and gradually speeds up, so that multiple moles appear at the same time. In the long game of hemp-derivative Whac-A-Mole, there will be no winners, except the unscrupulous.
You can ban Delta-8, but then up pops Delta-10, one of over one hundred cannabinoids found in hemp – not to mention the emergent hexahydrocannabinol (“HHC”), a non-THC product. You can’t possible whack all of the THC and other derivatives of the cannabis plant.
Reputable sellers want the certainty of well-crafted regulation.
Admittedly my perspective is skewed because I only represent reputable and law-abiding businesses in the cannabis industry. That said, they all believe that these products should be regulated, and hemp retailers should be licensed, both for their own economic certainty and consumer safety. None of them are in favor of allowing products to be sold randomly in every gas station by workers who, while they may be well-intended, are not properly educated on the products and their uses. The endocannabinoid system is complex as is the impact of the variety of products.
However, the products produce so many benefits, and an outright ban is not only unnecessary, it is ten steps backwards. An entire industry has sprung up around these products, including farmers, extractors, manufacturers, wholesalers, and retailers, not to mention the many peripheral businesses that havesprung up to serve the industry. Outright bans adversely impact these law-abiding businesses and have adverse economic impacts on the communities they serve.
Proper legislation and education is the key to prevent adverse effects of Delta-8 and other cannabinoids, with or without THC. Let’s leave Whac-A-Mole to the arcades and take the sensible and productive path forward.
Notes & Sources
Whac-A-Mole is an arcade game, originally known as Mogura Taiji (Mole Buster) in Japan. Typically, a Whac-A-Mole machine consists of a waist-level cabinet with a play area and display screen, and a soft, black mallet. Holes in the play area are filled with small, plastic, moles that randomly pop up. Points are scored by whacking each mole as it appears. The faster the reaction, the higher the score. Gameplay begins slowly enough for most people to hit all of the moles that rise, but gradually increases in speed, with each mole spending less time above the hole and with more moles outside of their holes at the same time.
AK Futures LLC v. Boyd Street Distro, LLC, 9th Cir. Ct. App, May 19, 2022.
The record showed that the manufacturer’s delta-8 THC products were hemp-derived and contained less than 0.3% of delta-9 THC and therefore were lawful under 7 U.S.C.S. § 1639o(1).
The entry for tetrahydrocannabinols on the Drug Enforcement Administration’s regulatory schedule I exempts any material, compound, mixture, or preparation that falls within the definition of hemp set forth in 7 U.S.C.S. § 1639o. 21 C.F.R. § 1308.11(d)(31)(ii).
Alaska, Colorado, Delaware, Idaho, Iowa, Montana, New York, Nevada, North Dakota, Rhode Island, Vermont, Utah, and Washington
Two states, namely Michigan and Connecticut regulate Delta-8 the same way they regulate adult-use recreational marijuana. While clearly Delta-8 is a substance that should be regulated, it does not belong in the same bucket as marijuana.
