Before we get to Michelle’s post I just wanted to say that I knew there was a reason I decided to select Michelle as a Global Top 200 cannabis lawyer for 2024-2025.
I have a funny felling that this is just the first of many times we’ll be seeing Michelle highlighting important issues over the next 12 months
She writes on Linked In
Ultimately the court found that plaintiff failed to show that the hemp-derived products she used (Delta-8, Delta-10, THC-O, HHC, full spectrum oil) were legal because there was no evidence submitted regarding the delta-9 THC concentration for any of the products she took
The court did provide its analysis of the issue –
“To sum up, under state and federal law, then, certain hemp-derived products-those “with a delta-9 [THC] concentration of not more than three-tenths of one percent (0.3%) on a dry weight basis,” id. § 90-87(13a); accord 7 U.S.C. § 16390(1)-don’t come within the definition of an illegal controlled substance, and instead fall under the umbrella of a legal hemp-derived product. The critical distinction that separates illegal marijuana and THC from legal hemp under both state and federal law is a product’s delta-9 THC concentration. See AK Futures, 35 F.4th at 690 (observing that “the only statutory metric for distinguishing controlled marijuana from legal hemp [under the CSA] is the delta-9 THC concentration level”). “
“Between the DEA’s February 2023 letter and AK Futures, we think the Ninth Circuit’s interpretation of the 2018 Farm Act is the better of the two. And we’re free to make that determination ourselves, despite a contrary interpretation from the DEA, because we agree with the Ninth Circuit that§ 16390 is unambiguous, see AK Futures, 35 F.4th at 692, and because, even if it were ambiguous, we needn’t defer to the agency’s interpretation, see Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2262 (2024) (“The APA, in short, incorporates the traditional understanding of the judicial function, under which courts must exercise independent judgment in determining the meaning of statutory provisions.”)”
“These definitions suggest that, rather than originating from organic matter-like the hemp-derived cannabinoids at issue-, synthetic cannabinoids are just that: compounds manufactured entirely out of synthetic materials. Because the statute is subject to this other reasonable (and, we think, better,) interpretation, we reject Diamondback’s contention that the DEA’s interim final rule or letter mandates a finding that THC-O is illegal.”