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I recently discussed cannabis banking, taxation, federal legalization, and cannabis legalization in Mexico with Earl Carruthers of CannaBiz Connect. You can watch the of our conversation video here.

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The HIA issued a statement in support of delta 8 THC and other hemp cannabinoids.The Hemp Industries Association (HIA) issued a press release and accompanying legal position statement in support of delta-8 THC and other hemp cannabinoids today. We are proud to represent the HIA and to have prepared the position statement. The HIA has a long history of supporting hemp and participants in the hemp industry, including by filing a series of lawsuits against the Drug Enforcement Administration (DEA). At a time when a number of law enforcement agencies, state departments of agriculture, and even other hemp organizations are taking public stances against delta-8 THC, it is refreshing that the HIA is willing to step up and publicly support the whole plant. You can read the legal position statement below or by clicking here. You can read the HIA’s press release by clicking here.June 23, 2021ATTORNEY ROD KIGHT REPRESENTS HEMP BUSINESSES  THROUGHOUT THE WORLD.Rod Kight is an international hemp lawyer. He represents businesses throughout the hemp industry. Additionally, Rod speaks at hemp and cannabis conferences, drafts and presents legislation to foreign governments, is regularly quoted on hemp and cannabis matters in the media, and is the editor of the Kight on Cannabis legal blog, which discusses legal issues affecting the hemp and cannabis industry. You can contact him by clicking here. 

Rod Discusses Psychedelics and Cannabis On “How to Launch an Industry”“How to Launch an Industry”, created and hosted by my friends, Dr. Jahan Marcu and Dr. Nigam Arora, is one of the most intelligent and creative podcasts I’ve encountered about the psychedelics and cannabis industries. I was a recent guest on the June 14 episode, “Profit and Laws”. In this episode my co-guest is Jocelyn Sheltraw, the Director of Industry Relations at Headset. We examine the recent legalization of cannabis in Mexico from several angles. Other topics include the psychedelics patent race, potential uses for cannabis tax proceeds, an examination of the recent vaporizer shipping ban, and a look at cannabis product labeling regulations state by state. The show rounds out with a new game, “Guess which politician said this”. Tune in and see if you can guess the correct answer!You can listen to the podcast on Spotify by clicking here, on Apple clicking here, or on the Marcu & Arora website by clicking here. June 21, 2021International attorney Rod Kight.Rod Kight is an international lawyer. He represents businesses throughout the psychedelics and hemp industries. Additionally, Rod speaks at conferences, drafts and presents legislation to foreign governments, is regularly quoted on hemp and cannabis matters in the media, and is the editor of the Kight on Cannabis legal blog, which discusses legal issues affecting the hemp and cannabis industry. You can contact him by clicking here. 

Rod Discusses Legal Challenges Facing Hemp and CBD with The CBD Guide.I was recently interviewed by Scott Hawksworth, founder of The CBD Guide podcast. We discussed a number of topics, including:My first-hand experience with CBD and my path to representing businesses in the cannabis industry.Some of the biggest legal challenges that cannabis businesses face, such as the lack of access to banking, and merchant processing.The FDA’s role in the cannabis legal landscape, and how the lack of leadership and regulation has led to complex state-by-state laws CBD companies must navigate.The lawful questions surrounding the incorporation of CBD into foods, beverages, and supplements, and the legal boundaries regarding health claims on Hemp products.Some of the biggest legal missteps CBD businesses make, and how they can be avoided.The various compounds in the cannabis plant other than CBD, and the legality surrounding the production of goods using these different cannabinoids.What the near future looks like for hemp and some of the upcoming projects of Kight Law Office.You can listen the podcast below or by clicking here. June 8, 2021ATTORNEY ROD KIGHT REPRESENTS HEMP BUSINESSES  THROUGHOUT THE WORLD.Rod Kight is an international hemp lawyer. He represents businesses throughout the hemp industry. Additionally, Rod speaks at hemp and cannabis conferences, drafts and presents legislation to foreign governments, is regularly quoted on hemp and cannabis matters in the media, and is the editor of the Kight on Cannabis legal blog, which discusses legal issues affecting the hemp and cannabis industry. You can contact him by clicking here. 

Rod Kight discusses delta-8 THC with The CBD Association.I recently discussed hemp-derived delta-8 THC with attorneys Matt Lewis and Morgan Davis of The CBD Association, a 501(c)6) nonprofit trade association that promotes strong and viable CBD and cannabinoid industries in the United States and internationally. A video of our conversation is below. Click here, here, here, and here to read more about delta-8 THC. [embedded content]May 24, 2021ATTORNEY ROD KIGHT REPRESENTS HEMP BUSINESSES  THROUGHOUT THE WORLD.Rod Kight is an international hemp lawyer. He represents businesses throughout the hemp industry. Additionally, Rod speaks at hemp and cannabis conferences, drafts and presents legislation to foreign governments, is regularly quoted on hemp and cannabis matters in the media, and is the editor of the Kight on Cannabis legal blog, which discusses legal issues affecting the hemp and cannabis industry. You can contact him by clicking here. 

Rod Kight and Shane Pennington discuss the DEA lawsuit about hemp extracts.As many readers of this blog know, the Hemp Industries Association (HIA) and Re Botanicals, which also owns the Palmetto Harmony brand of hemp products, sued the Drug Enforcement Administration (DEA) regarding its position on hemp extract. Kight Law is part of the legal team, along with Vicente Sederberg, Hoban Law Group, and Yetter Coleman. You can read more about this case by clicking here, here, and here. The HIA recently hosted a video webinar to provide information about the case. I discussed the litigation with my colleague and friend, Shane Pennington, of the Vicente-Sederberg law firm. The hour-long webinar was moderated by HIA Executive Director Jody McGinniss. You can watch it below.[embedded content]May 17, 2021ATTORNEY ROD KIGHT REPRESENTS HEMP BUSINESSES  THROUGHOUT THE WORLD.Rod Kight is an international hemp lawyer. He represents businesses throughout the hemp industry. Additionally, Rod speaks at hemp and cannabis conferences, drafts and presents legislation to foreign governments, is regularly quoted on hemp and cannabis matters in the media, and is the editor of the Kight on Cannabis legal blog, which discusses legal issues affecting the hemp and cannabis industry. You can contact him by clicking here. 

Is delta-8 THC synthetic? Does it matter?I. IntroductionDelta-8 tetrahydrocannabinol (delta-8 THC, or Δ8THC) surprised industry experts  by jumping ahead of cannabigerol (CBG) and cannabinol (CBN) as the “next big cannabinoid” to follow cannabidiol (CBD). This surge in popularity appears to be driven by a number of factors, including Δ8THC’s medical utility as an antiemetic and pain reliever. Mostly, though, Δ8THC’s popularity is based on its reputation as a lawful hemp product that produces psychoactive effects, a “legal high”. Due to its reputation and high consumer demand, Δ8THC  has become widely available. You can find delta-8 THC products, including vapes, tinctures, edibles, and flowers, in retail stores throughout most of the United States. You can also order delta-8 THC products online. Hardly a day goes by that I don’t see an article about Δ8THC featured in a major media outlet. I receive calls from clients and journalists about Δ8THC almost every day.There are hundreds, perhaps thousands, of companies involved in the Δ8THC segment of the hemp industry. Due to an oversupply in the market of hemp biomass, hemp extract, and CBD, we have seen a precipitous drop in both prices and profits for these commodities. In contrast, Δ8THC sales are exploding. For this reason, some contend that Δ8THC is singlehandedly saving the hemp industry from economic annihilation. Others, however, contend that Δ8THC is dangerous to the hemp industry’s reputation.For additional perspective, I recommend you read this article in conjunction with another article I wrote on the legal status of delta-8 THC, entitled “Is Delta-8 THC Legal or Not?”, which you can do by clicking here. Additionally, nothing in this article should be construed as legal advice. As I discuss at the end, “Disclaimer and Important Considerations”, this article articulates a legal theory and position which has yet to be addressed by any court. If you are considering producing or marketing delta-8 THC, you should first consult with an attorney.II. Is Δ8THC Lawful?Regardless of the various ways and reasons people use Δ8THC, or of its status as either “savior” or “bane” of the hemp industry, an important question is whether or not its reputation as a lawful hemp product is warranted. In other words, is delta-8 THC legal? I am asked this question on a daily basis.The crux of the issue is whether or not Δ8THC is a lawful hemp “derivative” under the Agricultural Improvement Act of 2018 (2018 Farm Bill), and thus exempt from the Controlled Substances Act (CSA). It is clear that Δ8THC extracted from a hemp plant is lawful, since the 2018 Farm Bill’s definition of “hemp” includes all cannabinoids with a delta-9 THC concentration that does not exceed 0.3% on a dry weight basis. Although Δ8THC is similar to delta-9 THC, it is a different molecule. It is not delta-9 THC.This, unfortunately, does not resolve our question since most Δ8THC currently available on the market was not extracted from a hemp plant. Rather, the available Δ8THC was derived from CBD extracted from hemp. This distinction raises two legal issues. First, is Δ8THC derived from CBD “synthetic”? Second, if Δ8THC derived from CBD is “synthetic”, is it an unlawful controlled substance under the CSA? As I will discuss, the answer to the first question is unresolved and depends on what definition is used for the term “synthetic”. Frustratingly, the term “synthetic” is undefined in the law. Fortunately, and as I will discuss, it does not matter whether delta-8 THC is synthetic or not under any definition. This is because the answer to the second question is clearly, “No”. Δ8THC derived from CBD extracted from hemp is not a controlled substance, regardless of whether or not the Δ8THC is deemed to be “synthetic”.III. Is Δ8THC derived from CBD “synthetic”?Δ8THC extracted from hemp is not a controlled substanceMuch of the controversy and spilled ink over the legal status of Δ8THC revolves around whether or not Δ8THC is a “synthetic” form of THC. Before discussing the “synthetic” issue, it is important to address the fact that Δ8THC extracted from a hemp plant is clearly lawful. I have read some erroneous legal arguments that contend all Δ8THC is unlawful because it is listed as a controlled substance under the CSA. These legal arguments miss the point entirely. The 2018 Farm Bill defines “Hemp” as:“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.” (emphasis added)Δ8THC is a cannabinoid. When a cannabinoid is extracted from hemp, it is lawful by definition since it contains no more than 0.3% delta-9 THC. In fact, Δ8THC does not contain any delta-9 THC. Although they are similar in their molecular structures, and both are THC analogs, Δ8THC and delta-9 THC are two separate and distinct cannabinoids. (Click here for an article I wrote on THC analogs.) The hemp plant produces more than one-hundred distinct cannabinoids aside from delta-9 THC, including Δ8THC, all of which have been removed from the CSA. Specifically, according to the CSA, “tetrahydrocannabinols” are controlled substances, “except for tetrahydrocannabinols in hemp (as defined under section 1639o of title 7)“. (Section 1639o of title 7 is the 2018 Farm Bill’s definition of “hemp”.)In other words, to say that Δ8THC is a federally controlled substance when extracted from hemp is simply wrong. Δ8THC is only a controlled substance under federal law when extracted from marijuana. (See, eg, the Source Rule, which applies equally to Δ8THC and to other non-delta 9 THC cannabinoids, such as CBD.)  It would have been easy for Congress to limit the broad scope of its exemption by using the general term “tetrahydrocannabinol” instead of the more specific term “delta-9 THC” in the definition of “hemp”. It did not. Thus, we must assume Congress meant to exempt all forms of THC from hemp from the CSA, except for delta-9 THC in concentrations above 0.3%. As an aside, I have read the argument that Δ8THC is a controlled substance by virtue of the federal Analogue Act. This position does not have merit and is not worth discussing here, though I address and dispose of it in an article you can read by clicking here.2. There is no legal definition of “synthetic THC”The issue of whether Δ8THC is “synthetic” or not arises from the fact that most Δ8THC on the market was not extracted directly from hemp. Rather, it was derived from CBD extracted from hemp. Specifically, a chemical reaction transformed CBD to Δ8THC. This begs the question of whether Δ8THC derived in this fashion is “synthetic” or not. The reason this distinction matters is because of the misguided argument that if Δ8THC is “synthetic”, then it is an illegal controlled substance, since “synthetic THC” is listed as a schedule I controlled substance under the CSA. As I discuss in Part IV, below, this distinction does not matter and all hemp-derived delta-8 THC is exempt from the CSA. It is a useful exercise for our inquiry to determine initially, if we can, whether or not Δ8THC derived from CBD is properly classified as “synthetic” or not. If not, then we can end our inquiry because Δ8THC is clearly not an illegal controlled substance.It may surprise you to learn that the term “synthetic THC”, which is listed as a controlled substance in the CSA, has no agreed-upon definition. To start with, the term is not defined in any federal statute or court case. The best I could find was this description from a 2018 criminal case:“[U]nlike THC, which is a partial agonist, synthetic cannabinoids are full agonists. This means, according to Dr. Trecki [a DEA pharmacologist who routinely testifies for the Government in criminal cases about the nature and effects of synthetic cannabinoids], synthetic cannabinoids produce a more intense reaction than THC.”  United States v. Hage, 741 Fed. Appx. 194, 195, 2018 U.S. App. LEXIS 18752, *1, 2018 WL 3385467In the science community, the term “synthetic” is used regularly, though rarely defined. As my friend, Dr. Joseph Baker, explains:“The words synthetic (or it’s root word synthesis) do not mean ‘Man made’. Every molecule in existence is a product of synthesis. Sugar and oxygen are made synthetically from water, CO2, and sunlight in a process called photo-synthesis. Every protein in the human body is made or modified synthetically by enzymatic synthesis (often called biosynthesis). Sugar is converted to alcohol in the beer making process through yeast synthesis.”Using this definition, all cannabinoids (not to mention all other compound in our universe) are “synthetic” since they are the product of synthesis. As you might imagine, this is not what the DEA considers to be synthetic.The Drug Enforcement Agency (DEA) often uses the term “synthetic THC” (see, eg, here, here, here, and here), but its definitions vary. In a 2017 letter to the US Sentencing Commission, the DEA proposed to define “synthetic cannabinoids” as “a substance that acts as an agonist at the CB1 receptor.” While this definition may be helpful to the DEA and federal prosecutors in sentencing hearings due to years of confusion about whether or not the inclusion of THC in the CSA refers only to synthetic THC or to all forms of THC, it does not illuminate what is actually meant by “synthetic” since it captures most cannabinoids, including those naturally occurring in hemp.According to a 2014 DEA Rule, “[s]ynthetic cannabinoids are a large family of compounds that are functionally (biologically) similar to delta9-tetrahydrocannabinol (THC), the main active ingredient in marijuana. Synthetic cannabinoids, however, are not organic but are chemicals created in a laboratory.” The DEA employs a similar, but not quite identical, definition in a 2011 Rule: “[s]ynthetic cannabinoids are a large family of chemically unrelated structures functionally (biologically) similar to THC, the active principle of marijuana.” The DEA further asserts in the 2011 Rule that “synthetic” refers to “non-organic… chemicals created in a laboratory.”Finally, I should note that the Centers for Disease Control (CDC) addresses synthetic cannabinoids in articles you can read by clicking here and here, but neither article defines the term. Even a 2014 peer-reviewed clinical paper entitled, “Synthetic Cannabinoids” fails to define what is meant by the term “synthetic” cannabinoids, other than to state that they “are not derived from cannabis and, unlike THC, are full agonists at cannabinoid receptors with biologically active metabolites; they are, therefore, more potent than THC.”Given the above, what is meant by the term “synthetic THC”? Under a general scientific definition, all compounds are “synthetic”. However, this does not advance our understanding in the context of whether or not delta-8 THC is a controlled substance. Based on the various definitions and positions cited above, we can arrive at multiple conclusions about whether or not delta-8 THC is “synthetic”.On the “synthetic” side, we can point to the important fact that Δ8THC is produced in a laboratory from another compound, namely CBD. Is this sufficient for it to be classified as a “synthetic” form of THC?On the “not synthetic” side, we can argue that Δ8THC is chemically related to THC. It is, in fact, a form of THC. Under the DEA’s definition, a cannabinoid must be “chemically unrelated” to THC in order to be “synthetic”. Additionally, to meet the DEA’s definition of “synthetic”, Δ8THC must be a non-organic chemical created in a laboratory. Δ8THC from CBD is created in a laboratory, though it is also an organic chemical naturally expressed in the hemp plant. Moreover, and according to Dr. Baker, “No atoms are added or subtracted during the conversion from CBD to D8. This conversion is simply a rearrangement of electronic distribution.” Also, in response to the DEA’s star expert witness, Dr. Trecki, Δ8THC is not a full CB1 agonist nor does it produce as intense a reaction as delta-9 THC, both of which are required for Δ8THC to meet the definition of “synthetic THC”. Finally, addressing the CDC’s position, Δ8THC is derived from hemp. For these reasons, it appears that Δ8THC is not synthetic.Based on the above, the question of whether delta-8 THC is “synthetic” appears to be unresolved, though there are compelling reasons to assert that the answer is, “No”.IV. If Δ8THC derived from CBD is “synthetic”, is it an unlawful controlled substance under the CSA?Notwithstanding the above, if we assume for purposes of this article that Δ8THC is synthetic, is it rendered an illegal controlled substance under the CSA? The answer is, “No”.I’ll begin this section with a question I recently received from a reporter and my response to the question.Question: You assert that CBD-derived Delta-8 is still “hemp-derived” because under the Farm Bill all hemp derived products are considered “hemp.” But your critics contend that the word “derived” implies extraction or distillation rather than synthesis. What is your response to this? Response: Good question. The answer is that neither the 2018 Farm Bill, nor any other federal statute, defines what is meant by a hemp “derivative”. So, asserting that the word “derived” implies anything is a meaningless and unsubstantiated assertion. Absent a statutory definition, we must rely on the definition that is commonly used in the context in which the term appears. In this context, the term “derivative” arises in the 2018 Farm Bill’s definition of “hemp”. Specifically, the 2018 Farm Bill’s definition of “hemp” includes “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.” The 2018 Farm Bill uses the term “derivative” in a scientific context and so a scientific definition is most appropriate. The Chemicool Dictionary (the standard dictionary for scientific terms) defines “derivative” as:“a compound that can be imagined to arise or actually be synthesized from a parent compound by replacement of one atom with another atom or group of atoms.” It is clear that the term “derivative” is not limited to “extraction or distillation rather than synthesis” as you indicate that my critics assert. In fact, the definition actually includes the term “synthesis“. To my critics, I say that the 2018 Farm Bill term that is properly understood to be “extraction or distillation” is a hemp “extract”, not a “derivative”, which has its own, separate meaning. A hemp “derivative” is a compound that arises from a parent compound by the replacement of atoms. This is exactly what happens when hemp-derived CBD is isomerized (another 2018 Farm Bill term) and becomes delta-8 THC. It has nothing to do with “extraction or distillation”.[T]he term “hemp” includes its cannabinoids, extracts, and derivatives, etc. In other words, CBD from hemp is hemp under the 2018 Farm Bill. And a hemp derivative is also “hemp”. For this reason, delta-8 THC derived from CBD is “hemp”. Properly speaking, it is a “hemp derivative”, which is lawful under the 2018 Farm Bill.The primary point I make in this exchange is that the term “derivative” is often conflated with the term “extract”. This is consequential because it goes to the heart of this issue. The “parent compound” at issue is CBD that was extracted from hemp. Under the 2018 Farm Bill, CBD is “hemp”, at least from a legal perspective. When Δ8THC “arises from” or is “synthesized” from CBD, then it is a “derivative” of it. In other words, Δ8THC from CBD is a “hemp derivative”, which is specifically provided for under the 2018 Farm Bill. It is “hemp” and, as such, it is exempt from the CSA.This brings up my final point, which is that when two federal laws appear to be in conflict on an issue and one of the laws is both older and more general than the other, the more recent and specific law will control. In legal lingo, this maxim is called “Lex specialis”, which means that “the more specific controls over the general.” (See, eg. United Ref. Co. Incentive Sav. Plan v. Morrison, 2013 U.S. Dist. LEXIS 166186, *11, 2013 WL 6147672) Wikipedia does a good job of explaining Lex specialis as:“a doctrine relating to the interpretation of laws and can apply in both domestic and international law contexts. The doctrine states that if two laws govern the same factual situation, a law governing a specific subject matter (lex specialis) overrides a law governing only general matters (lex generalis). The situation ordinarily arises with regard to the construction of earlier-enacted specific legislation when more general legislation is later passed.”In this case, the older and more general law is the CSA, which generically includes “synthetic THC” on the list of controlled substances. The more recent and specific law is the 2018 Farm Bill, which expressly removes “hemp” from the CSA. Under the 2018 Farm Bill, “hemp” includes its derivatives, among which is Δ8THC.V. ConclusionIt is clear that delta-8 THC extracted from hemp is not a controlled substance. When derived from CBD it is unclear whether it is “synthetic” or not, though the better argument is that it is not. Even if we assume for argument’s sake that it is “synthetic”, Δ8THC is still not a controlled substance since it is a “derivative” of hemp, which is specifically included within the 2018 Farm Bill’s definition of hemp.To that last point, Congress had an opportunity to define “hemp” any way it wished when it enacted the 2018 Farm Bill. It did so by distinguishing hemp from marijuana by virtue of its concentrations of delta-9 THC, rather than by the concentrations of all forms of THC. Additionally, it chose to include “cannabinoids”, “extracts”, “isomers” and “derivatives” of hemp within the definition of “hemp”. In other words, these things are hemp. As such, they are lawful.Finally, I have seen the opinion expressed that “hemp” is not psychoactive and thus delta-8 THC is not hemp. In response, I suggest those who hold this opinion re-read the 2018 Farm Bill’s definition of hemp, which makes no reference whatsoever to psychoactivity or intoxication. The legal definition may not fit what these individuals think hemp should be; however, what matters from a legal standpoint is what the law says hemp is. In some ways, this pushback reminds me of my earliest days exploring legal issues surrounding CBD. I recall receiving a number of calls from hemp industry professionals concerned with the emergence of CBD products, including CBD gummies. They strongly contended this use was “not intended” by Congress. In retrospect, those objections seem simple and misguided. CBD products are now ubiquitous and CBD consumer products are almost synonymous with hemp. I think (and hope) we will look back on the so-called “delta-8 THC controversy” with the same perspective.DISCLAIMER AND IMPORTANT CONSIDERATIONSIt is important to note that while Δ8THC has been known and studied in a scientific context for several decades, it is new to the consumer market. I am unaware of any court cases that have considered the legal status of Δ8THC. As of this date, the legal arguments and positions presented in this article have not been tested in any court of law, and it is not known whether a court would adopt them. Neither I, nor any other lawyer, can guarantee that the legal theory about Δ8THC presented in this article and other articles, or any other legal position regarding Δ8THC, would be accepted by a court, nor can I, or any other lawyer, guarantee any specific outcome regarding a legal matter involving Δ8THC.For this reason, substantial uncertainty and risk currently exists, including the risk of criminal prosecution associated with manufacturing, possessing, selling, and/or using delta-8 THC. I sincerely hope this will change. In fact, one of my motivations in publishing this article is to educate people, including lawyers, regulators, and law enforcement agents, about hemp derived delta-8 THC. In the meantime, deciding whether to produce, market, or even possess Δ8THC should only be done after careful consideration and consultation with an attorney. At a minimum, such a consultation should address the arguments presented in this article and other relevant legal positions, should include a thorough risk-assessment that takes into account any pertinent state laws, and should discuss how delta-8 THC should be marketed and sold given its intoxicating effects. Finally, this article only addresses the legal status of hemp derived delta-8 THC under the federal CSA. It does not take into consideration the Food, Drug & Cosmetic Act, other federal laws and regulations, nor does it address any state laws or regulations, all of which should be considered.The lawyers at Kight Law are well-versed in the legal and practical issues raised by producing and marketing delta-8 THC. You can contact us to schedule a consultation by clicking here.Special thanks to Joseph Baker, PhD, for his invaluable assistance in helping me sort through the scientific issues presented in this article. Dr. Baker received his PhD in chemistry from Duke University. He completed a two-year fellowship in pharmacology and cancer biology; spent a decade in the pharmaceutical industry making injectables, topicals, otics, opthalmics, pills, etc.; was the director of a clinical and forensic toxicology lab for three years; and is currently the scientific director for Ratoon Agroprocessing, LLC, a North Carolina registered industrial hemp processor.Thanks also to my wife, Ashley, for her outstanding editing skills and superhuman patience.May 6, 2021ATTORNEY ROD KIGHT REPRESENTS HEMP BUSINESSES  THROUGHOUT THE WORLD.Rod Kight is an international hemp lawyer. He represents businesses throughout the hemp industry. Additionally, Rod speaks at hemp and cannabis conferences, drafts and presents legislation to foreign governments, is regularly quoted on hemp and cannabis matters in the media, and is the editor of the Kight on Cannabis legal blog, which discusses legal issues affecting the hemp and cannabis industry. You can contact him by clicking here. 

Will the USPS continue to deliver vapes through the mail?Will the US Postal Service (USPS) continue to deliver vapes? That is the issue addressed in a document published by the USPS on April 19, 2021, titled: “Treatment of E-Cigarettes in the Mail.” You can read it by clicking here. In its summary section, the document states:“A forthcoming final rule will determine whether electronic nicotine delivery systems (ENDS) may continue to be mailed pursuant to certain statutory exceptions that are currently administered through an application process.”The mailability of ENDS is something we have previously covered recently here and here, but for those that are new to the blog or uninitiated, a bit of context may be useful. The Appropriations Act was signed into law on December 27, 2020. It addresses vaping in two sections. The first section amends an existing law regarding online sales of e-cigarettes to children in several important ways. The second section placed significant restrictions on mailing vape products.On February 19, 2021, the USPS published a notice of rulemaking to amend Publication 52, Hazardous, Restricted, and Perishable Mail. A copy of Publication 52 can be found by clicking here. The proposed edits would implement the Preventing Online Sales of E-Cigarettes to Children Act (Act), which adds ENDS to the definition of “cigarettes”, making them subject to the regulations of the Jenkins Act. If the proposed edits are upheld, ENDS will also become subject to the mailability restrictions and exceptions in 18 U.S.C. 1716E (PACT Act), which rely on the Jenkins Act definition of “cigarettes.”However, as the quoted statement above reads, a final rule is forthcoming regarding the mailability of ENDS, it has not been issued yet. And, as the USPS’ recent document states:“Until the final rule is issued, ENDS are not subject to the PACT Act, although they may be nonmailable for other reasons. See, e.g., 18 U.S.C. 1716(a), (h) (poisonous, explosive, and other dangerous materials, and advertising, promotional, or sales matter relating to the same); 21 U.S.C. 843(b)-(c), 863 (controlled substances, drug paraphernalia, and advertisements relating to the same); 39 U.S.C. 3018 (hazardous materials). Regardless of the legal status of any products under state or local laws, violations of these Federal mailability laws can result in civil and/or criminal penalties.” (Emphasis added).Since its publication earlier this week, I have received numerous calls from existing and potential clients regarding the impact of the USPS’ recent publication on their businesses. One of the first questions I am asked is whether this publication obviates the requirements set forth in the PACT Act regarding the shipment of vaporizers and vaporizer products. The answer to this question is no, this does not eliminate the various requirements set forth in the PACT Act that relate to federal and state registration, age verification, taxation, et al. This publication simply addresses the issue of the mailability of ENDS and the other requirements of the PACT Act still apply to any company or person shipping vaporizers or vaporizer products directly to consumers.The second question I am asked is whether the language referenced in the USPS’ recent publication was a “win” for the hemp and CBD industry. The answer to that question is unknown. The USPS’ recent publication mentions the fact that it has received “numerous inquiries and comments about the possibility of submitting exception applications for ENDS products in advance of the final rule.” The USPS stated, however, that it is not accepting applications for exceptions at this time, but it provided some information regarding the exception application process and it also provided some guidance to mailers interested in availing themselves of any exceptions that may ultimately be made available. The reason for not accepting exception applications is clear, due to the fact the final rule has not been published the USPS has not yet determined whether and to what extent those exceptions will be extended to ENDS.As a side note, we believe that there will likely be some form of an exception for ENDS that contain hemp and/or CBD, provided they do not contain nicotine or tobacco. That, however, is simply an opinion of this firm, and whether there will ultimately be an exception for these products under the PACT Act remains to be seen.What is encouraging, however, is the fact that in its recent publication, the USPS specifically dealt with the mailability of CBD products. In its section titled “Mailability Beyond the PACT Act” the USPS made it clear that ENDS implicate mailability statutes and regulations beyond the PACT Act. As a result, the USPS urged all persons currently or prospectively engaged in the mailing of ENDS- including, in particular those who intend to continue mailing ENDS under any potentially available PACT Act exceptions to review Publication 52 carefully. It then went on to highlight specific issues, the first of which was CBD products.The USPS’ recent publication provided the following related to CBD products:“For hemp-based products containing CBD with a THC concentration not exceeding 0.3 percent, mailers must retain, and prepare to make available upon request, records establishing compliance with all applicable federal, state, and local laws pertaining to hemp production, processing, distribution, and sales, including the Agricultural Act of 2014 and the Agricultural Improvement Act of 2018. Such records may include laboratory test results, licenses, and compliance reports. See Publication 52 section 453.37.”With that in mind, it is important to note that any company or person shipping hemp/CBD vaporizers and vaporizer products can still do so via the USPS, provided it complies with the other terms and conditions of the PACT Act. In addition, and as a matter of best practice, any entity or person shipping hemp/CBD vaporizers and/or vaporizer products should comply with the requirements set forth in Publication 52 section 453.37 as they relate to record keeping establishing compliance.Kight Law will continue to update the readers of this blog regarding the ever-evolving regulations governing the cannabis industry, including an update regarding the eventual publication of the USPS final rule regarding the mailability of ENDS. In the meantime, for information on how you or your company can comply with the terms of the PACT Act, reach out to one of our attorneys who can assist you in your compliance efforts. Additionally, Kight Law has recently put together a PACT Act Resource Guide which provides practical advice and useful resources for complying with the terms of the PACT Act. For more information about how Kight Law can help you or your business, contact us today.April 26, 2021KIGHT LAW ATTORNEY PHILIP SNOW IS WELL VERSED IN THE LEGAL ISSUES SURROUNDING HEMP VAPE PRODUCTS, INCLUDING HEMP EXTRACT, CBD, AND DELTA-8 THC. This article was written by Kight Law attorney Philip Snow. Kight Law represents hemp and CBD businesses in the US and throughout the world. To schedule a consultation with Philip, please click here and mention this article.

Kentucky gets it wrong on delta-8 THC.As a large hemp producing state, Kentucky is important to the hemp industry. It is often perceived to be “ground zero” for hemp law since it is home to two outspoken and hemp-friendly Senators; it sued the Drug Enforcement Administration (DEA) when the DEA seized imported hemp seeds coming into the state; and it submitted the first proposed plan to the US Department of Agriculture (USDA) under the Agricultural Improvement Act of 2018 (2018 Farm Bill), though the plan has effectively been withdrawn. For this reason, it is particularly notable when Kentucky gets it wrong on an important hemp issue. Unfortunately, this occurred today in a legal opinion on delta-8 tetrahydrocannabinol (D8 THC) issued by the Kentucky Department of Agriculture (KDA), which I have pasted directly into this article below. In response to inquiries about the legal status of D8 THC, the KDA contends that: “Delta-8 THC is a Schedule I controlled substance under federal law and Kentucky law; that distributing products containing this substance is illegal; and distributing such products could lead to your expulsion from the Hemp Licensing Program as well as potential exposure to criminal prosecution.”Although the KDA does not regulate or police controlled substances in Kentucky or anywhere else, I am not surprised it chose to opine on D8 THC. The KDA and numerous other state departments of agriculture have addressed the legal status of cannabidiol (CBD) over the years, as its production and sale directly affect their licensees. It makes sense that the KDA wants to express an opinion on D8 THC, though it has limited authority to enforce its position, since D8 THC is having a major (positive) financial impact on the hemp industry. What shocks me is how far the legal opinion misses the mark. I disagree with the KDA’s conclusion, as do most of my colleagues. The most breathtaking feature of the legal opinion, however, is that its analysis completely misses the issue, namely that hemp and cannabinoids derived from it, including D8 THC, are removed from the Controlled Substances Act (CSA). Without an understanding of this basic and fundamental issue, which was resolved by the passage of the 2018 Farm Bill, the KDA was bound to come to the wrong conclusion. [Please note that this article is a response to the KDA’s legal opinion on D8 THC. It is not intended to analyze the legal status of D8 THC, which I do at length in an article you can read by clicking here.]The KDA opinion starts its discussion with federal law, which it completely botches when it states:“Let’s begin with federal law. As you know, in 2018 Congress created a narrow exemption from the Controlled Substances Act’s definition of “marijuana” (DEA numbers 7350 and 7360) for hemp that contains not more than 0.3% total Delta-9 THC. Cannabis with total Delta-9 THC in excess of that threshold remains a Schedule I substance.There is no equivalent exemption for Delta-8 THC. That being the case, the manufacture and marketing of products containing Delta-8 THC, in any quantity or concentration level, remains prohibited by federal law.And indeed, the federal Drug Enforcement Administration’s Controlled Substances List states that Delta-8 THC and other forms of THC are Schedule I controlled substances.”This position completely ignores the fact that Congress created an expansive definition of hemp, which bears repeating here since the KDA distorted it. The 2018 Farm Bill defines “Hemp” as: “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.” (emphasis added)D8 THC is a cannabinoid. When D8 THC is derived from hemp it is lawful by definition since it contains no more than 0.3% delta-9 THC. In fact, it does not contain any delta-9 THC. Although they are similar in their molecular structures, D8 THC and delta-9 THC are two separate and distinct cannabinoids. To say the 2018 Farm Bill provides a “narrow exemption” totally overlooks that hemp produces more than one-hundred distinct cannabinoids aside from delta-9 THC, including D8 THC, all of which have been removed from the federal CSA. Specifically, according to the CSA, “tetrahydrocannabinols” are controlled substances, “except for tetrahydrocannabinols in hemp (as defined under section 1639o of title 7)“. [Note- section 1639o of title 7 is the 2018 Farm Bill’s definition of “hemp”.]In other words, to say that D8 THC is a federally controlled substance when derived from hemp is simply wrong. D8 THC is only a controlled substance under federal law when derived from marijuana. (See, eg, the Source Rule, which applies equally to D8 THC and to other cannabinoids, such as CBD.)  The KDA opinion continues by asserting that because D8 THC is illegal at the federal level it is also illegal under Kentucky state law. (“Because Delta-8 THC is a Schedule I controlled substance under federal law, it remains a Schedule I controlled substance under state law as well.“) Given that the KDA’s analysis of federal law is incorrect, how can I even begin to address its analysis of state law? Despite the fact that the KDA got it wrong, it is clear that Kentucky is not a friendly state for D8 THC. This is unfortunate, both for the state of Kentucky’s hemp program and for its licensees. D8 THC is currently in high demand and has revived an industry in which many, and perhaps most, participants have struggled financially. On a daily basis, I hear from clients that D8 THC helped keep them in business over the past 12 months. Kentucky had an opportunity to be a leader on an important issue. Instead, and as with its prohibition on smokable hemp, Kentucky chose to stake out an official position that is not only wrongheaded from a policy standpoint but is also wrong in its legal analysis. How much longer can the Kentucky hemp industry bear the burden of these misguided official positions before succumbing to their weight? I sincerely hope Kentucky revises its views and embraces the realities of hemp and of the hemp industry. Here is the KDA’s legal opinion on D8 THC:April 19, 2021ATTORNEY ROD KIGHT REPRESENTS HEMP BUSINESSES  THROUGHOUT THE WORLD.Rod Kight is an international hemp lawyer. He represents businesses throughout the hemp industry. Additionally, Rod speaks at hemp and cannabis conferences, drafts and presents legislation to foreign governments, is regularly quoted on hemp and cannabis matters in the media, and is the editor of the Kight on Cannabis legal blog, which discusses legal issues affecting the hemp and cannabis industry. You can contact him by clicking here.