Delta-8 legality affirmed, ruling could further trademark protection for hemp brands

Thursday, the United States Court of Appeals for the Ninth Circuit reaffirmed the legality of Delta-8 hemp products in its decision regarding AK Futures V. Boyd Street Distro.

The Court wrote in its decision, “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” such downstream products so long as they do not cross the 0.3 percent delta-9 THC threshold.”

“In sum, the Farm Act’s definition of hemp is not ambiguous, so we do not consider agency interpretation.

“Even if we did, the DEA’s view of the Farm Act’s plain text aligns with our own and does not support Boyd Street’s proposed distinction based on manufacturing method.”

Judge D. Michael Fisher wrote, “Regardless of the wisdom of legalizing delta-8 THC products, this Court will not substitute its own policy judgment for that of Congress. 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 mistake.”

While a deviation from the established acceptance of Delta-8 legality would have been catastrophic for the hemp industry, an overlooked part of the case for the cannabis industry is that the court’s ruling helps to further the establish the legitimacy of trademarks for cannabis businesses. The court writes in its declaration, “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.” 

While hemp businesses have been able to file for trademarks since the passage of the Farm Bill in 2018, language from the United States Patent and Trademark Office has made it difficult for some cannabis brands and companies to register their trademark, at times facing opposition and a lack of clarity. In May 2019, USPTO issued its Examination of Marks for Cannabis and Cannabis-Related Goods and Services after Enactment of the 2018 Farm Bill, which in part reads, “Applicants should be aware that even if the identified goods are legal under the CSA, not all goods for CBD or hemp-derived products are lawful following the 2018 Farm Bill. Such goods may also raise lawful-use issues under the Federal Food Drug and Cosmetic Act (FDCA).”

The court’s judgment could be impactful for other cannabis brands seeking or applying for trademarks, now or in the future.