No Need to Wait for

Delta-8
(at least in the 9th)

Delta-8 THC, one of the more than one hundred different cannabinoids in the cannabis plant, has been deemed legalized by the US 9th Circuit Court of Appeals. The case, AK Futures LLC v. Boyd Street Distro LLC, arose as a trademark and copyright infringement dispute when AK Futures, an e-cigarette and vaping liquid producer, sued Boyd Street for selling counterfeit versions of AK’s “Cake” brand vaping liquid containing Delta-8 THC. In the lower court, AK obtained a preliminary injunction prohibiting Boyd Street from selling goods bearing the “Cake” logo and displaying copies of the Cake design.

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In its defense, Boyd Street argued that AK could not own valid trademarks in connection with its vaping liquid because Delta-8 THC was illegal under federal law, and therefore, trademark protection is not available in connection with such products. To register a trademark under federal law, the mark must be lawfully used in commerce, thus, according to Boyd Street, AK’s trademarks were invalid because Delta-8 THC was still an illegal controlled substance.
The 9th Circuit saw it differently in light of the 2018 Farm Bill which legalized hemp. Under the Farm Bill, hemp is defined in only relation to the percentage of Delta-9 THC – if it contains less than 0.3% Delta-9 THC, then it is hemp. In other words, the relevant legal distinction between hemp and marijuana is the concentration of Delta-9 THC only – the presence or absence of other cannabinoids is irrelevant. Thus, products containing Delta-8 THC fall within the statutory definition of hemp, and are therefore legal under federal law.
This case is interesting for at least a couple reasons. First, there has been widespread debate over the legal status of the other cannabinoids in cannabis (such as Delta-8) as a result of the Farm Bill’s definition of hemp. At least for now, Delta-8 products are legal within the States of the 9th Circuit. Second, it may pose some vexing considerations at the US Trademark Office because it has generally refused to register cannabis-related marks in light of other federal laws. For example anything with more than 0.3% Delta-9 THC is illegal marijuana, and CBD in ingestible form has not been approved by the Federal Drug Administration.

End of the Rodeo for Roundup

On Tuesday the Supreme Court declined Bayer’s petition for certiorari in Monsanto v. Hardeman, one of the Roundup cancer cases which resulted in punitive damages against Monsanto. The appeal asked the Court to find that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) preempted failure-to-warn claims under State law, and that the trial court failed to adhere to correct standards for expert testimony. The Supreme Court’s decision not to hear the appeal brings the case to an end and validates plaintiff’s ability to bring state law tort claims that are consistent with FIFRA’s misbranding standards.
In anticipation of the appeal, a number of Ag groups weighed in to urge that FIFRA be interpreted to preempt such claims, and even wrote letters to the White House asking it to withdraw the U.S. Solicitor General’s brief which argued against the appeal. While the Ag groups vaguely alleged that the Administration was undermining science, for the most part, it appears that they were mainly worried about losing access to glyphosate.
Some of the concern from these Ag groups is misdirected and overblown. First, glyphosate isn’t going anywhere – it will continue to be widely available, especially for farm use. As reported in the Wall Street Journal, farmers will keep using glyphosate regardless of the cancer lawsuits. Plus, there are tons of generic glyphosate brands on the market.
Further, if these groups are genuinely concerned about the interpretation of FIFRA, a better place to ask for clarity would be in Congress. After all, FIFRA is a statute that can be amended, and in fact has been amended from time to time. Instead of asking the judicial branch to impose one interpretation or another, Congress is the place that can make specific, concrete changes to the language and meaning of the Act.
Finally, it is somewhat shortsighted for these group to argue for broad preemption by FIFRA because that impacts every pesticide, not just glyphosate. Dicamba is a case in point – those labels have been changed nearly every year since it was expanded for in-crop use on dicamba-tolerant crops. It should go without saying that if EPA’s review and approval were the result of invincible scientific data, those labels would have been perfect in the first go-round. And there is a sizeable number of farmers that would be left without a remedy for what is undoubtedly a faulty label.