Delta-8 Cannabis Compound Is Legal, Says Federal Appeals Court

Plus: Libertarian Party changes abortion and bigotry planks, the FDA's weird rejection of fluvoxamine for treating COVID-19, and more...

Elizabeth Nolan Brown | 5.31.2022 9:30 AM

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(Photo by Elsa Olofsson on Unsplash )

The 2018 farm bill effectively legalized products containing cannabis compound delta-8 THC, according to the U.S. Court of Appeals for the 9th Circuit. The court's ruling helps bring some clarity to what has been a murky zone for a few years, as more companies have begun marketing and selling joints and vape products containing the hemp-derived compound.

"Following the passage of the 2018 farm bill, delta-8 THC and some other minor cannabinoids entered a sort of legal gray area," notes Marijuana Moment's Ben Adlin. "Many businesses in the hemp industry insisted the products were legal, but officials in many jurisdictions disagreed."

The 2018 farm bill legalized hemp and its derivatives so long as they contained no more than 0.3 percent delta-9 tetrahydrocannabinol (THC).

Delta-9 THC—often referred to simply as THC—is the main psychoactive substance in cannabis and is unambiguously banned under federal and many state laws. But things are more unclear when it comes to delta-8 THC, a delta-9 THC isomer that is only found in trace amounts in cannabis plants.

"Products containing delta-8-THC became widely available in most of the USA following the 2018 Farm Bill and by late 2020 were core products of hemp processing companies, especially where delta-9-THC use remained illegal or required medical authorization," note researchers in a paper published earlier this year in the Journal of Cannabis Research. "Delta-8-THC may provide much of the experiential benefits of delta-9-THC with lesser adverse effects," they point out.

But some authorities have moved to specifically ban or restrict delta-8 THC products. The Texas Department of State Health Services declared its use or sale illegal last year. And the Food and Drug Administration (FDA) has issued warning letters to some makers of delta-8 THC-containing products.

Now, the 9th Circuit has held that "delta-8 THC products are lawful under the plain text of the Farm Act."

Delta-8 THC does have "psychoactive and intoxicating effects," pointed out Judge D. Michael Fisher in the court's opinion. But "regardless of the wisdom of legalizing delta-8 THC products, this Court will not substitute its own policy judgment for that of Congress," the court held. If legalizing delta-8 THC as part of the farm bill was a mistake, "then it is for Congress to fix its mistake."

The ruling is part of a trademark and copyright fight between vaping companies AK Futures and Boyd Street Distro, explains Marijuana Moment:

In it, AK Futures, which manufactures e-cigarettes and vaping products, claimed that a Los Angeles company, Boyd Street Distro, had been selling counterfeit versions of its branded products that contain delta-8 THC.

Boyd Street Distro responded that the trademark and counterfeit claims were invalid on the grounds that delta-8 THC is federally illegal. But in its opinion this week, the Ninth Circuit panel disagreed, upholding a lower court's preliminary injunction against Boyd Street Distro.

While the 9th Circuit's ruling may seem unambiguously good, Dale Gieringer, California director of the National Organization for the Reform of Marijuana Laws (NORML), told the San Francisco Chronicle that he was troubled by it.

"The court is federally legalizing a psychoactive cannabinoid about which relatively little is known, while keeping the amply studied Delta-9 illegal," said Gieringer. "It makes more sense to legalize Delta-9, which has been studied exhaustively in thousands of subjects and research protocols over the decades."

FREE MINDS

Libertarian Party (L.P.) plank changes on bigotry, abortion. Two changes in the L.P. platform are raising eyebrows. The first—which has garnered greater attention—removes language saying "we condemn bigotry as irrational and repugnant." In its place, the plank will state: "We uphold and defend the rights of every person, regardless of their race, ethnicity, or any other aspect of their identity."

In addition, delegates at this past weekend's L.P. convention voted to remove the current abortion plank—which says "government should be kept out of the matter, leaving the question to each person for their conscientious consideration"—from the party's platform. This means that the party is officially neutral on the legality of abortion.

The first change is arguably an improvement, describing what is affirmatively defended rather than what is opposed and focusing the plank more on practice than belief. But removing the L.P.'s long-standing pro-choice plank at a time when abortion access is under its gravest threat in the party's lifetime is disappointing, to say the least. And more than the other change, it implies a shift in policy priorities.

The removal of both the bigotry and abortion planks were on the wish list of the party's controversial Mises Caucus, which earlier this year took control of various state parties and went on to sweep Libertarian Party leadership elections this past weekend. Read more on the Mises Caucus takeover in Brian Doherty's convention dispatch.

FREE MARKETS

The Food and Drug Administration should approve the antidepressant fluvoxamine for treating COVID-19, argues Wall Street Journal editorial board member Allysia Finley. In trials, fluvoxamine has proved as capable as other approved treatments at stopping hospitalizations and deaths. "Yet after sitting on the fluvoxamine application for nearly five months—most other EUAs [emergency use authorizations] have been approved within two—the FDA [said] that 'the treatment benefit of fluvoxamine was not persuasive when focusing on clinically meaningful outcomes,'" Finley writes:

How is prevention of severe illness not a clinically meaningful outcome?

The FDA quibbled that the "timing of the trials spanned different periods" of the pandemic and "demographics of the patient populations were not uniform." Huh? These are trial strengths since they show the benefits can be generalized across different patient populations, settings and variants. That has proved not to be the case for monoclonal antibodies or even vaccines, which have become less effective against new variants.

The agency also said there are plenty of alternative treatments available. Never mind that the Biden administration has been warning it may need to ration antiviral and monoclonal treatments unless Congress coughs up billions to purchase more. A 10-day course of fluvoxamine costs about $5 compared with $500 to $700 for Paxlovid and molnupiravir. Monoclonals cost about $2,000.

Doctors also worry that Paxlovid could breed antiviral resistance as some patients report experiencing relapses after finishing a course. The more an antiviral is used, the more likely a virus will develop mutations that render the drug ineffective.

Paxlovid has also been causing rebound cases of COVID-19 in some patients who take it. "If you take Paxlovid, you might get symptoms again," CDC director Dr. Rochelle Walensky recently told CBS News.

QUICK HITS

• Another study links coffee consumption with lower risk of death.

• Scientists don't know what effect mild but repeated COVID-19 infections will have.

• Japan has approved abortion-inducing pills—but only if a patient has their partner's consent.

• "Although some materials can be effectively recycled and safely made from recycled content, plastics cannot. Plastic recycling does not work and will never work," write Judith Enck, a former regional administrator with the Environmental Protection Agency, and chemical engineer Jan Dell in The Atlantic.

•In the wake of mass shootings in Buffalo, New York, and Uvalde, Texas, proposals to raise the legal age for buying guns to 21 are gaining ground. "But it is hard to see how that policy can be reconciled with the Second Amendment unless you assume that 18-to-20-year-olds, unlike older adults, do not have a constitutional right to keep and bear arms," writes Reason's Jacob Sullum, noting that "two federal appeals courts recently rejected that proposition, citing a long tradition of gun ownership by young adults."