The hemp industry is feeling significant relief after the Ninth Circuit Court of Appeals held that “the plain and unambiguous text” of the 2018 Farm Bill legalized Delta-8 THC products derived from hemp, see AK Futures LLC v. Boyd Street Distro, LLC, 9th Cir. No. 2-56113 (May 19, 2022). Delta-8 THC products derived from hemp CBD are legal products under federal law. The law, the court said in the 3-0 ruling, “is silent with regard to delta-8 THC.”

In 2018 Congress passed a version of the Agricultural Improvement Act, otherwise known as the Farm Bill. Under the 2018 Farm Bill, though, Congress expressly legalized hemp for commercial purposes, distinguishing it from marijuana based on Delta-9 THC content. Congress defined “hemp” as: “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 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”

The Ninth Circuit analyzed the definition of “hemp” under the 2018 Farm Bill. The court found that “the plan and unambiguous text of the Farm Bill compels the conclusion that the delta-8 THC products before us are lawful.” Going further, found that the definition of “hemp” “extends to downstream products and substances, so long as their delta-9 THC concentration does not exceed the statutory threshold.

The respondents argued that Congress never intended to legalize intoxicating cannabis products under the 2018 Farm Bill. But the court made quick work of that argument, stating that “regardless of the wisdom of legalizing delta-8 THC products, this Court will not substitute its own policy judgment for that of Congress,” and that if Congress “inadvertently created a loophole legalizing vaping products containing delta-8 THC, then it is for Congress to fix its mistake.”

Many people assume that a hemp product, by virtue of its low Delta-9 THC concentration, are not psychoactive. Yet, there are many cannabinoids in the cannabis plant, including other types of THC. One of those additional cannabinoids is Delta-8 THC, which has intoxicating properties. Many find Delta 8 helps them relax and alleviates anxiety.

THC occurs naturally in the cannabis plant. However, it appears in such small quantities that it doesn’t make economic sense to extract Delta-8 THC from the plant directly. Given this, most Delta-8 THC products on the market are created through a chemical process that converts hemp-derived CBD into Delta-8 THC. This had led many Delta-8 THC opponents to argue that these products – regardless of their concentration of Delta-9 THC – are illegal synthetic THC.

Put simply, some have argued that only Delta-8 THC extracted directly from the cannabis plant can be considered a legal hemp product, while Delta-8 THC manufactured from CBD remains illegal. Some states have taken this approach and passed legislation reflecting this distinction.

Though these issues are far from settled, in the Ninth Circuit, the bottom line from this opinion is that the use of Delta-8 THC products in commerce – regardless of manufacturing method – is authorized under the 2018 Farm Bill.