Week of Cannabis Review 5/21/2022: Federal court rules on delta-8 legality, Governor Abbott responds to TX marijuana polls and more

This is our short weekly review of what’s going on in cannabis in the week of 5/21/2022. This week in review, Texas Polls show wide support for medical legalization and recreational legalization, but Gov Abbott still says no to the broad reform. A federal court says delta-8 is federally legal, the VA is conflating hemp with marijuana in a rejection letter for a veteran applying for business certification, and the FDA admits its been slow to regulate hemp and wants congress to step in. Audio player included directly below for those on the go.

A poll from the Dallas Morning News University of Tyler showed that 83% of Texans want to see marijuana legalized for medical use, and 60% want to see it legalized for recreational use.  Despite the results of polls like this, Governor Abbott indicated to the news organization that he is still against full legalization in the state of Texas. 

We don’t need to be stockpiling in our jails and prisons with people who are arrested for minor possession allegations,” Abbott said.

His stance has remained unchanged from previous encounters where the governor has spoken on the issue. 

The polls show a possible shift of when constituents approve of legalization for cannabis overall in the state. In 2021, a Raise Your Hand Texas poll showed that 50% of conservatives and Republicans were in favor of full legalization for cannabis when the tax revenue would be going to public schools. In the most recent poll which asked “Do you support or oppose the legalization of marijuana in Texas for recreational use?” Only 42% of Republicans responded as being in favor, an 8 percentage point drop. This may become a critical talking point for the Governor race in November given that voucher programs for schools and high property taxes are being brought back up in discussions. 

An appeals court has ruled that delta-8 thc is federally legal. The case involving delta-8 got the decision on an appeal from a preliminary injunction in a trademark dispute. The company Boyd Street appealed the ruling on said preliminary injunction.  Matthew Zorn notes in a write up that a company named AK Futures argued that delta-8 falls under the definition of hemp, which was legalized by the 2018 Farm Act. Boyd Street as a defendant wanted a different interpretation of the Act based on a wide of the mark read of DEA documents and congressional intent. It will also be noted that there have been discussions on whether delta-8 would remain a legitimate product on the market given that there was a belief that congress did not intend to legalize any psychoactive substances. 

On this injunction AK Futures won and the court stated. “the plain and unambiguous text of the Farm Act compels the conclusion that the delta-8 THC products before us are lawful.  A straightforward reading of (US Code Title 7 Chapter 38 Subchapter 7 ) § 1639o yields a definition of hemp applicable to all products that are sourced from the cannabis plant, contain no more than 0.3 percent delta-9 THC, and can be called a derivative, extract, cannabinoid, or one of the other enumerated terms.”

Zorn noted on social media that “although reasonable minds may differ about some aspects of the opinion as it relates to the 2018 Farm Bill, the “intent” based anti-intoxication interpretation of the 2018 Farm Bill looks pretty dead.”

The head of the FDA, Commissioner Dr. Robert M. Califf, told a congressional appropriations committee that his agency has taken little regulatory action on CBD products in recent years despite the federal legalization of hemp and its derivatives. Califf suggested that he believes congress needs to do more to speed the process up.

“I don’t think the current authorities we have on the food-side or the drug side necessarily give us what we need to have to get the right pathways forward,” the commissioner said. 

The commissioner noted that, We just know more because we’ve done more research.

Rep. Mark Pocan (D-WI) asked the commissioner during the hearing “Technically CBD’s sale, in the eyes of the FDA, is illegal. What is the FDA’s plan to clarify that CBD could possibly be regulated as a food or food additive, and is there any timeline?”

Califf told the committee that, “The research so far has shown that there are some risks with CBD, so we’re going to need a different pathway than just the standard pathway. You know, when you come six years later to the job you had before and nothing has really changed, that’s telling you that you can’t just keep trying to do the same thing over and over.”

The US Department of Veterans Affairs has rejected a veterans application for a hemp business certification, making the claim that it could create an appearance of endorsing marijuana.

The denial letter sent to Marine veteran Zack Zindler stated “products derived from the same genus of plant (cannabis) as marijuana” would basically equate to  “a federal agency endorsing a Schedule I controlled substance.”

Zindler, who is the owner of a Florida based hemp company is seeking certification as a service-disabled veteran-owned small business (SDVOSB). This is a designation that enables a veteran owned company to compete for specific federal contracts.

Abigail Nath, a Pennsylvania–based cannabis lawyer and consultant for the company, told Marijuana Moment that if the rejection comes down to the sole issue of hemp’s legality under federal law, the VA position is flat-out wrong.

The Us Hemp Roundtable Responded with a letter stating “The Center based its denial, in significant part, on the incorrect belief that Holistic Serendipity sells illegal marijuana. None of the submitted information or documentation indicates that Holistic Serendipity sells marijuana.”

The letter later goes on to state that the federal legality of hemp, including all derivatives, extracts, and cannabinoids of the plant, is not in question.

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