There has been considerable debate in the cannabis industry about whether D-8 chemically converted from hemp is legal.
A recent class action filed against popular cannabis brand Stiiizy Inc. in Illinois federal court is the second lawsuit involving Delta-8 THC and THC potency, and should put D-8 product manufacturers on alert for similar lawsuits. See Byron, et al. v. Stiiizy, Inc., Case No. 3:24-cv-1082 (S.D. Ill. 2024).
Although hemp and marijuana are both Cannabis sativa, their chemical makeup is different. Marijuana contains high levels of Delta-9 THC, the main cannabinoid responsible for the high associated with marijuana. Hemp, on the other hand, contains no or negligible amounts of D-9. Concentrated amounts of D-8 can be chemically created from hemp and provide a similar high to marijuana.
Through the passage of the Agriculture Improvement Act, commonly referred to as the 2018 Farm Bill, hemp was removed from the definition of marijuana under the Controlled Substances Act and thus is no longer considered a Schedule 1 drug. Hemp was defined in the Farm Bill to include derivatives, extracts and cannabinoids with a D-9 concentration of less than 0.3 percent. Since the 2018 Farm Bill, ingestible products, such as gummies, containing D-8 that are advertised as having been derived from federally legal hemp have proliferated.
There has been considerable debate in the cannabis industry about whether D-8 chemically converted from hemp is legal. Although the 2018 Farm Bill provided that the U.S. Food and Drug Administration maintained authority over hemp-derived products intended for human consumption, the FDA has still not promulgated any regulations for such hemp-derived products. Consequently, states have been left to regulate D-8 products, which has led to varying regulation of D-8 from state to state. Some states have prohibited D-8, some have regulated it with certain restrictions, and some have not regulated it at all.
The murky regulatory environment for D-8 may lead to more and more lawsuits under consumer protection laws. For example, in February 2024, a Georgia consumer brought a class action against Cloud 9 Online Smoke & Vape and other sellers of Delta-8 vape pens alleging that their products contained an unlawful concentration of Delta-9 THC. See Ledbetter, et al. v. Cloud 9 Online Smoke & Vape, LLC, et al., Case No. 1:24-cv-00538 (N.D. Ga. 2024).
The allegations against Cloud 9 mirror those asserted against Stiiizy in the new class action lawsuit, in which it is alleged that Stiiizy’s D-8 products contained more than the federally legal limit of 0.3 percent D-9 THC. The plaintiffs in that case represent thousands of consumers in Illinois and Missouri and claim that, by exceeding the federal limit on D-9 THC, Stiiizy put the health and safety of those consumers at risk. The causes of action contained in the complaint allege consumer protection violations, negligent misrepresentation and fraud.
Companies that manufacture products containing D-8 and other hemp derivatives need to be aware of the possibility of class action lawsuits targeting the safety of their products, and be proactive in ensuring their products are safe and their businesses prepared for such claims. Certified testing, accurate labeling and insurance are all good steps to take in that direction.
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If you have any questions about this Alert, please contact Seth A. Goldberg, James Hearon, any of the attorneys in our Cannabis Industry Group of the attorney in the firm with whom you are regularly in contact.
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