Congress may have inadvertently legalized a form of cannabis under Trump

Although marijuana remains strictly prohibited under federal law, a federal appeals court ruled on Thursday that Congress quietly changed the law in 2018 to legalize cannabis cigarettes and vaping products containing similar intoxicants but made in from hemp.

The 2018 Farm Bill, signed by President Donald Trump, included provisions removing most legal restrictions on hemp, a cannabis plant with many uses in industrial products, food, personal care and medicine. The law clarified that it did not allow products containing more than a minimum amount of delta-9 tetrahydrocannabinol, or THC, the active ingredient in marijuana. Although marijuana has been legalized for personal use by adults in California and several other states, and for medical use in many states, it has been prohibited by federal law since 1937.

On Thursday, however, a conservative panel at the U.S. Ninth Circuit Court of Appeals in San Francisco said the 2018 law repealed bans on hemp products containing a different cannabinoid, Delta-8 THC.

The court said Delta-8 THC has “psychoactive and intoxicating effects” like those of marijuana, but is not a marijuana product, has not been explicitly prohibited by anti-marijuana laws, and other drugs, and became legal when Congress authorized the cultivation and marketing of hemp. , an action spearheaded by then-Senate Majority Leader Mitch McConnell, R-Ky.

“Regardless of the wisdom of legalizing Delta-8 THC products, this court will not substitute its own political judgment for that of Congress,” Judge D. Michael Fisher said. in the 3-0 decision. If the legalization was unintentional, he said, Congress can change it.

Fisher, a federal appeals judge in Philadelphia temporarily assigned to the Ninth Circuit, was appointed by President George W. Bush. He was joined by Justices Andrew Kleinfeld, appointed by President George HW Bush, and Mark Bennett, appointed by Trump.

The case did not involve a drug lawsuit, but rather a trademark lawsuit by a company called AK Futures, which sells cigarettes and vaping products containing Delta-8 THC, with cakes on their labels, and accused a Los Angeles retailer, Boyd Street Distro, of selling counterfeit versions of its products. Upholding a federal judge’s decision, the court said AK Futures was selling a legal product and therefore could sue for trademark infringement.

Darrel Mint, a Boyd Street attorney, said the company is settling the lawsuit and is unlikely to appeal the decision. He also said the U.S. Food and Drug Administration sent letters on May 4 to companies selling Delta-8 THC products stating that the agency intended to regulate those products.

If cigarettes containing the hemp derivative are ultimately found to be legal, Mint said, “federal and state governments will likely take care of making sure they’re safe and not marketed to children.” He said he had seen no evidence that Congress intended to legalize Delta-8 THC.

A leader of the campaign to legalize marijuana said he was troubled by the decision.

“The court federally legalizes a psychoactive cannabinoid about which relatively little is known, while keeping the widely studied Delta-9 illegal,” said Dale Gieringer, California director of the National Organization to Reform Marijuana Laws, or NORML. “It makes more sense to legalize Delta-9, which has been studied extensively in thousands of research subjects and protocols over decades.”

Bob Egelko is a writer for the San Francisco Chronicle. Email: begelko@sfchronicle.comTwitter: @BobEgelko

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