U.S. Circuit Court of Appeals Rules Delta-8 is Legal

A trademark dispute between a vape manufacturer and a packaging retailer accused of counterfeiting its goods has lead to a ruling from the U.S. Circuit Court of Appeals in San Francisco that delta-8 THC products are legal — protected under the Agricultural Improvement Act of 2018.

Vape manufacturer AK Futures’ accused Boyd Street Distro of stealing its logo and  infringing on its trademark to produce counterfeit pens. The attorney for Boyd Street Distro argued that for a trademark to be protected it must be “lawfully” used in trade. The attorney argued that the ill-defined federal legal status of delta-8 THC rendered the trademark lawsuit invalid.

The court, however, ruled that delta-8 products are legal products under definition of the Agricultural Improvement Act of 2018.  The bill states the legality of “all derivatives, extracts, cannabinoids that contain less than 0.3 percent delta-9 THC by weight.”

“The record on appeal convinces us that AK Futures’ delta-8 THC products are lawful under the plain text of the Farm Act and may receive trademark protection,” the court stated in its opinion.

On May 4, the U.S. Food and Drug Administration issued warning letters to five companies for selling products containing delta-8 THC. That action was based on the companies’ labeling and marketing of delta-8 THC as an unapproved treatment.  Still, the government’s move sent shockwaves through the cannabis industry: It was the first time that the public health agency issued such letters for products containing delta-8 THC.

But the decision handed down last Thursday should alleviate worries for retailers and growers they could be working at the edge of disaster. However, this ruling at a federal level does nothing to prevent states banning delta-8 products. Several have already enacted legislation to restrict the sales of delta-8 products.

“Regardless of the wisdom of legalizing Delta-8 THC products, this court will not substitute its own policy judgment for that of Congress,” Judge D. Michael Fisher said in the 3-0 ruling.