The federal legalization of hemp through the 2018 Farm Bill removed restrictions on a wide variety of molecules made by the cannabis plant– including, a new court ruling says, the psychoactive cannabinoid delta-8 THC.
A panel of the United States Court of Appeals for the Ninth Circuit wrote in an opinion that products containing delta-8 THC are basically legal since federal legislation defines hemp as “any part of” the marijuana plant, including “all derivatives, extracts, [as well as] cannabinoids,” that has less than 0.3 percent delta-9 THC by weight.
The legislation, the court said in the 3-0 ruling, “is silent when it comes to delta-8 THC.”
Delta-9 THC, typically referred to simply as THC, is the most plentiful psychoactive cannabinoid in marijuana and also remains federally illegal, classified as a Schedule I controlled substance. By comparison, Delta-8 THC typically appears in just trace amounts in the marijuana plant.
Current cultivation and production methods, however, allow for so-called minor cannabinoids to be concentrated from hemp plants and refined into consumer products. And delta-8 THC products have surged in popularity over the last few years, especially in states where cannabis remains illegal.
Like its more famous counterpart, delta-8 THC also has psychoactive qualities, although proponents say the experience is usually a lot more controlled and has gentler side effects than delta-9 THC. Health officials and even some supporters of cannabis legalization, however, say far less is understood about the health impacts or potential risks of delta-8 THC.
The Ninth Circuit panel, for its part, mentioned that although delta-8 THC has “psychoactive and intoxicating effects,” it falls within federal law’s definition of hemp and is therefore legal.
” Despite the knowledge of legalizing delta-8 THC products, this Court will not substitute its own policy judgment for that of Congress,” Judge D. Michael Fisher wrote for the three-judge panel, which also consisted of Judges Andrew Kleinfeld and Mark Bennett. All three were appointed by Republican presidents.
If lawmakers unintentionally made a loophole and did not mean to legalize psychoactive substances such as delta-8 THC, Fisher stated, “then it is for Congress to fix its error.”
Dale Gieringer, NORML’s California director, told the Chronicle that it would make more sense from a policy perspective to just legalize delta-9 THC, which he stated “has been researched exhaustively in thousands of subjects and research procedures over the decades.”
After the enactment of the 2018 farm bill, delta-8 THC as well as some other minor cannabinoids entered a sort of legal gray area. Many businesses in the hemp industry asserted the products were legal, however officials in many jurisdictions disagreed.
The subject is increasingly bubbling up to the federal level. The Food and Drug Administration (FDA) released its first set of warning letters to businesses over the allegedly illegal sale of products including delta-8 THC products.
FDA formerly issued a notice cautioning consumers regarding such products, similar to how the agency has sent warning letters to certain companies over unauthorized marketing around CBD.
FDA regulations presently don’t allow for the marketing of cannabinoids in the food supply, though legislators as well as advocates have been pressing the agency to craft policies allowing such activity for CBD given that hemp was federally legalized.
Congressional legislators from both sides have been pushing FDA to establish regulations on CBD. However, during a U.S. House committee hearing on Thursday, FDA Commissioner Dr. Robert M. Califf stated he needs more support from Congress to do so.
“I don’t believe the current authorities we have on the food side or the drug side really provide us what we need to have to get the right paths forward,” the commissioner said.
The Drug Enforcement Administration, meanwhile, signaled late last year that delta-8 THC was legal.
In Texas last year, the state government said delta-8 THC was illegal– a motion that opponents challenged in court, securing a pause on state enforcement of the ban.
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