Class Action Claims Certain Delta-8 Vape Pens Contain Illegal Amounts of Psychoactive Delta-9 THC

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A Georgia consumer alleges in a proposed class action that she purchased from Cloud 9 Online Smoke & Vape and other sellers delta-8 vape pens that contained an unlawful concentration of delta-9 THC, the psychoactive component in cannabis. 

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According to the 49-page complaint, delta-8 THC, though also psychoactive, is derived from hemp and not considered a controlled substance under federal law. If delta-8 THC is produced by synthesis, delta-9 THC is also produced, the suit relays. Per the case, delta-9 THC can be present in a product, such as in a vape pen, as long as the amount does not exceed 0.03 percent by dry weight, the threshold set by the Controlled Substances Act of 1970.

The plaintiff alleges that all of the products she purchased—which were manufactured by defendants Stiiizy, Savage Enterprises, L&K Distribution, and Cookies Creative Consulting & Promotions and purchased from retail defendants Cloud 9, Xhale City and Element Vape—contain an “illegal amount or type” of delta-9 THC. 

“Plaintiff wanted a legal amount of hemp-derived delta-9 tetrahydrocannabinol,” the filing states. “Plaintiff did not purchase a product containing a legal amount of Delta 9 Tetrahydrocannabinol because of each Defendant’s deception.”  

More specifically, the plaintiff claims to have unknowingly bought the following products that, due to their concentrations of delta-9, were in fact a Schedule I Controlled Substance: 

• Cookies, with a strain name of Huckleberry Gelato Flower, manufactured by defendant Cookies;
• Extrax, with strain names Forbidden Jelly and Power Plant, manufactured by Savage Enterprises; 
• Looper, with a strain named Blue Gusherz, manufactured by L&K Distribution; and
• Stiiizy Hemp, with a strain name of OG Kush, manufactured by Stiiizy. 

According to the suit, the above-listed products, which the case says were tested by independent, third-party labs, were labeled with inaccurate certificates of analysis, particularly from defendants Columbia Laboratories, Encore and Pharmlabs SD, that failed to reveal the items contained “mycotoxins” and more than 0.3 percent delta-9 by dry weight. 

The lawsuit contests that although the United States Justice Department has by and large declined to bring prosecutions under federal cannabis laws, this policy of non-enforcement “does not strike one single word from the U.S. Code or deprive private individuals of their judicially-enforceable rights under federal law.” 

“Persons like Defendants who market their products as medicinal should be held to reasonable production standards to make certain this ‘medicine’ is legal,” the suit argues, stressing that selling cannabis that contains more than 0.3 percent delta-9 THC by weight is still considered an illegal activity. 

The plaintiff accuses the defendants of misleading the public given that their products’ certificates of analysis warrant that the items contain an appropriate amount of delta-9. The lawsuit calls the defendants’ products at issue “illegal and worthless” and claims consumers would not have bought them “absent [the companies’] false and misleading statements and omissions.” 

The lawsuit looks to cover all persons who bought delta-8 products manufactured by Stiiizy, Savage Enterprises, L&K Distribution or Cookies from Cloud9, Element, Xhale City or Xhale Franchise within the past four years and until the date of class certification. 

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