Delta-8 Is Legal, But ...

Home | Canna Law Blog | Delta-8 Is Legal, But … Just last week, the U.S. Court of Appeals for the Ninth Circuit affirmed a lower court's holding that the 2018 Farm Bill legalized delta-8 THC products derived from hemp. In the Ninth Circuit's view, "the plain and unambiguous text of the Farm [Bill] compels the conclusion that the delta-8 THC products before us are lawful." Specifically, "the only statutory metric for distinguishing controlled marijuana from legal hemp is the delta-9 THC concentration level." The case at issue was an intellectual property dispute that required the courts to consider the legality of delta-8 products. The plaintiff-appellee, AK Futures LLC, brought a copyright and trademark infringement suit against Boyd Street Distro, LLC. In its defense, Boyd Street alleged that AK Futures did not have "protectible trademarks" for its delta-8 products "because delta-8 THC remains illegal under federal law." In its defense, Boyd Street argued that the Drug Enforcement Administration (DEA) continues to consider delta-8 THC an unlawful substance under its interpretation of the 2018 Farm Bill, "because of its method of manufacture." While disagreeing with Boyd Street's characterization of the DEA stance, the Ninth Circuit clarified that it "need[ed] not consider the agency’s interpretation because [7 U.S.C.] § 1639o is unambiguous and precludes a distinction based on manufacturing method." Boyd Street also argued that Congress "intended the Farm Act to legalize only industrial hemp, not a potentially psychoactive substance like delta-8 THC." To this, the Ninth Circuit had the following to say: 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. Boyd Street’s intent-based argument is thus unsuccessful. The Ninth Circuit found no compelling argument to support the proposition that delta-8 products are unlawful. This in turn led the court to declare that, being lawful, delta-8 products "may receive trademark protection." The nexus between delta-8's legality and trademark protection exists because of the lawful use requirement. According to this requirement, use of a mark in commerce must be lawful under federal law in order to form the basis for federal registration under the U.S. Trademark Act (also known as the Lanham Act). Despite the good news for delta-8, cannabis products that are unlawful under the Controlled Substances Act or the Federal Food, Drug, and Cosmetic Act remain ineligible for trademark protection. This includes all products derived from marijuana. The Ninth Circuit accepted as a given the notion that products illegal under federal law are not entitled to federal trademark protection. Yet, as we noted in Cannabis Trademarks: Is the Lawful Use Requirement Even Lawful, the proposition that the Trademark Act authorizes, let alone requires, such a restriction on trademark registration is shaky. We welcome the court's decision as far as delta-8 goes and applaud it for refusing the invitation to engage in creative statutory interpretation. This refusal is important not just as a matter of principle, but also to flag for federal legislators potential lacunas in the current legal framework for cannabis. At the same time, we lament the fact that the Ninth Circuit did not take advantage of this opportunity to examine the lawful use requirement, which underpinned Boyd Street's claims. This would have been an ideal opportunity for the court to at the very least consider whether product legality and trademark protection should be linked, a question with implications not just for delta-8 brands, but for the wider cannabis industry. Check Out Our Cannabis Law Services Share Twitter Facebook LinkedIn E-mail Comment Fred Rocafort Fred leads Harris Sliwoski’s intellectual property practice and is the coordinator of the firm’s international team. Much of Fred’s practice consists of helping cannabis businesses protect their brands. He also works with entrepreneurs and companies entering the Web3 space, a new frontier for IP law. Prior to joining Harris Sliwoski, Fred worked overseas for more than a decade, in both government and private sector roles. Fred is a regular contributor to the award-winning China Law Blog and Canna Law Blog. Fred began his career overseas as a U.S. consular officer in Guangzhou, China, where he advocated for fairer treatment of American companies and citizens in China and for stronger intellectual property rights enforcement. After entering the private sector, Fred worked at a Shanghai law firm as a foreign legal advisor and later joined one of the oldest American law firms in China, helping foreign companies navigate the Chinese legal environment. He also led the legal team at a Hong Kong-based brand protection consultancy, spending most of his time out in the field, protecting clients against counterfeiters and fraudsters in Greater China, Southeast Asia and Latin America. In addition to his IP work, as a native Spanish speaker, Fred works closely with different Harris Sliwoski teams on Latin America and Spain matters. Fred also provides advice to cannabis industry participants and other businesses on import and export transactions. Fred is an ardent supporter of FC Barcelona—and would be even in the absence of Catalan forebears who immigrated to Puerto Rico in the mid-1800s. Harris Sliwoski Attorney Read more posts [email protected] Read More Federal law and policy, Hemp/CBD, Intellectual Property/Branding Related Posts September 25, 2026 DEA Enforcement in a Changing Cannabis Landscape: Rescheduling, Hemp, and What Comes Next September 17, 2026 The Supreme Court May Decide if Cannabis-Related Residency Requirements are Unconstitutional September 16, 2026 A $31.8 Million Cannabis-Related Verdict That a Federal Court Wouldn’t Enforce September 15, 2026 Jason Adelstone Moderates Federal Cannabis Policy Discussion at IgniteIt Denver September 11, 2026 Medical Marijuana in Schedule III Survives Its First Major Challenge September 10, 2026 How to Acquire a Colorado Cannabis License September 4, 2026 The Intoxicating Hemp Products Ban Was Delayed a Month. Now What? 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