Yes, it's legal! (We're sure)

United States:

Agriculture Improvement Act of 2018

‘Subtitle G—Hemp Production ‘‘SEC. 297A.

DEFINITIONS. ‘‘In this subtitle: ‘‘(1) HEMP.—The term ‘hemp’ means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.


(a) RULE OF CONSTRUCTION.—Nothing in this title or an amendment made by this title prohibits the interstate commerce of hemp (as defined in section 297A of the Agricultural Marketing Act of 1946 (as added by section 10113)) or hemp products.

(b) TRANSPORTATION OF HEMP AND HEMP PRODUCTS.—No State or Indian Tribe shall prohibit the transportation or shipment of hemp or hemp products produced in accordance with subtitle G of the Agricultural Marketing Act of 1946 (as added by section 10113) through the State or the territory of the Indian Tribe, as applicable



Case Law:

In a recent decision, AK Futures LLC v. Boyd St. Distro, LLC, No. 21-56133, the 9th Circuit ruled that products containing delta-8 tetrahydrocannabinol (delta-8 THC) can fall within the statutory definition of “hemp” federally legalized under the 2018 Agriculture Improvement Act (2018 Farm Bill). Thus, these products can have greater than 99% THC potency, yet still fall outside the definition of a controlled substance, unlike delta-9 THC products which must contain under a certain percentage of THC by weight. In doing so, the court also concluded that such products are legal and therefore entitled to trademark protection. 

AK Futures LLC, a manufacturer of e-cigarette and vaping products, brought suit against Boyd Street Distro, LLC, a storefront and smoke products wholesaler, for trademark and copyright infringement. AK Futures alleged Boyd Street was selling counterfeit versions of its “Cake” branded e-cigarette and vaping products that contain delta-8 THC. Boyd Street, though not contesting the finding that it was selling counterfeits, sought relief from injunction granted by the District Court under two theories: 1.) delta-8 THC remains a Schedule 1 controlled substance as it is “synthetically-derived” and therefore illegal under federal law; and 2.) that even if legal, substances legalized by the 2018 Farm Bill must be for an industrial purpose and not for human consumption.

The 9th Circuit disagreed with Boyd Street’s first theory and determined that delta-8 THC products derived or extracted from the cannabis sativa plant can fall within the plain meaning of “hemp” as found in the 2018 Farm Bill, and can therefore be legal, if such products contain no more than “0.3% delta-9 THC.” The court also determined that no such industrial purpose limitation exists within the definition of hemp or its exemption from the Controlled Substances Act. In fact, the court made clear that if “Congress inadvertently created a loophole legalizing vaping products containing delta-8 THC, then it is for Congress to fix its mistake.” 



European Union:

EIHA European Industrial Hemp Association,

Press Release December, 2021:

The new Common Agricultural Policy has been adopted and the maximum THC level on the field has been restored to 0,3 % It was in October 2020 when we announced that the European Parliament had voted in favor of restoring the authorized THC level on the field from 0,2 % to 0,3 %. One year later, and after long discussions aiming at working out compromises between the three EU institutions, the final proposal of the Common Agricultural Policy (CAP) was adopted today by the Council, following the final vote at the European Parliament on November 24.

The new CAP, that will enter into force on January 1st, 2023, recognizes the possibility for farmers to receive Direct Payments for hemp varieties registered in the EU Catalogue that have a maximum level of THC of 0,3 %. This change entails a potential enlargement of the number of hemp varieties accepted under the EU Catalogue. As a reminder, this level only applies if farmers want to receive direct payments, meaning that in Europe it is possible to plant hemp with THC level on the field over 0,3 %, provided it is authorized by national regulations (e.g., 0,6 % in Italy; 1 % in Czech Republic).

"I have been fighting for this moment for over a decade. My special thanks go to our amazing team in Brussels, who have made this possible.” Says Daniel Kruse, pioneer of the hemp industry and President of the European Industrial Hemp Association (EIHA). “This is a great day for the hemp sector and another step towards a greener future for Europe. However, if compared to other countries worldwide, 0, 3 % is still a low limit; for instance, Switzerland, in the heart of Europe, has a higher number, and other EU countries already work with higher limits as well. Scientific studies and many years of experience prove that higher limits pose absolutely no safety risk for consumers. The EU lays the foundation for a growing, green and sustainable industrial hemp sector across our Union and it has the chance to achieve a level playing field again in global competition when it comes to the industrial hemp sector.”

“I am proud of what has been achieved today. We worked hard to ensure that hemp had the recognition it deserves in the Common Agricultural Policy. I would say that this small step reflects that EU legislators are closer to fully acknowledging and recognizing the existence of a legitimate European hemp sector.” Says Lorenza Romanese, EIHA Managing Director. “However, as I have said other times, this is not it. We need to keep working together, as there are still other areas where hemp deserves to be better regulated, but we are on the right track.”



Is Delta 8 THC legal federally?

Delta 8 THC was made legal by H.R. 2: The Agricultural Improvement Act of 2018, commonly referred to as the 2018 Farm Bill. Delta 8 THC products are made from federally legal hemp – they are legal on a federal level unlike regular THC. Until 2018 Delta 8 THC products had been illegal and were specifically named in the Controlled Substances Act. However, in addition to making all hemp cannabinoids, isomers, and derivatives legal, the 2018 Farm Bill specifically includes text to remove all confusion between laws by amending the CS Act to exclude Delta 8 THC from hemp.

Delta 8 THC products are federally legal if the final product has the low concentrations of Delta 9 as stated in the bill (< 0.3%). Delta 8 THC products are also legal in most states, but they are not legal in all states. Delta 8 THC is legal in most states that have hemp laws mirroring H.R. 2, however not all states do this. Some states specifically exclude Delta THC products.


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