June 26, 2022

Volume XII, Number 177

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June 24, 2022

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It's About Time: Federal Court Addresses Delta-8

Delta 8 tetrahydrocannabinol ("THC"), an intoxicating form of THC often derived from hemp-derived cannabidiol (aka "CBD"), has been at the center of numerous hot button issues since its arrival in the broader hemp product market last year. 

We have tracked those issues as they have evolved.  Like many things in the hemp-derived world, federal courts and regulatory agencies have struggled to keep up with the developments in the market, and Delta-8 THC is at the forefront.  But recently, the Ninth Circuit Court of Appeals (the "Court") in a copyright and trademark infringement case called AK Futures LLC v. Boyd Street Distro, LLC, issued a strongly-worded opinion for publication that offers guidance on how other courts can and should treat Delta-8 THC.  The Court's opinion may be found here

The core issue on appeal was whether Delta-8 THC is a legal product under the 2018 Farm Bill.  Plaintiff AK Futures LLC ("AK"), an e-cigarette and vaping product manufacturer, sued Boyd Street Distro, LLC ("Boyd Street") in the United States District Court for the Central District of California for copyright and trademark infringement.  AK alleged that Boyd Street sold counterfeit versions of its Delta-8 THC products, and it asked the District Court to order Boyd Street to stop.  The District Court ruled in favor of AK, holding that the 2018 Farm Bill legalized delta-8 THC products, and Boyd Street appealed.  On appeal, Boyd Street did not deny selling the counterfeit products but instead argued that it could not have infringed on any copyrights or trademarks because (i) copyrights and trademarks can only protect legal products and (ii) Delta-8 THC is not a legal product. 

The Court disagreed with Boyd Street and affirmed the District Court's order.  In affirming the District Court, the Court noted that (i) hemp-derived Delta-8 THC that meets the Delta-9 THC concentration requirements of the 2018 Farm Bill is legal, (ii) any competing regulatory interpretation from, e.g., the Drug Enforcement Administration, would not be considered because the statutory text was clear and unambiguous, and (iii) if Delta-8 THC was the product of some unintended loophole in the 2018 Farm Bill, that was a problem for the US Congress to address, not the Courts.

The Court's language was strong and to the point, and it will serve as a guide for other courts around the nation grappling with these issues.  That said, the Court's opinion is not binding authority on courts across the country, and the possibility of other interpretations remains. 

© 2022 Ward and Smith, P.A.. All Rights Reserved.National Law Review, Volume XII, Number 146
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About this Author

Allen N. Trask III, Litigation Attorney, Ward Smith, Wilmington, North Carolina, business, civil, commercial litigation
Litigation Attorney

Allen focuses his practice on assisting those who own, manage, and invest in real estate and common interest communities.  He regularly works with real estate developers and the residential and commercial community associations that they create to handle all manner of issues, including the preparation, amendment, interpretation, and enforcement of restrictive covenants and governing corporate documents, declarant control transition and disputes, community management, insurance claims and disputes, and collections.  He also frequently represents Real Estate Investment...

910-794-4804
Amy H. Wooten Construction Litigation Attorney Ward and Smith Raleigh, NC
Litigation Attorney

Amy Wooten has a wealth of experience in a wide range of substantive areas. She litigates complex commercial litigation cases; construction disputes; community association matters, and disagreements arising in the HOA context; professional licensing defense; and employment litigation. She represents clients in a broad range of commercial matters, such as breach of contract, breach of fiduciary duty, and unfair and deceptive trade practices claims. 

Amy also has significant experience representing industry professionals and contractors in construction defect disputes in state and...

919.277.9130
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