Texas has banned Delta-8 THC, but the fight isn’t over yet

Delta-8 THC dealers in Texas do not take a surprise ban on their products lightly.

On October 15, the Texas Department of State Health Services (DSHS) tacitly made a huge change to its guidelines for the Consumable Hemp Program: In addition to plants containing more than 0.3% Delta-9-THC, products containing Delta-9 8-THC “in any case”. Concentration ”is now also considered a List I regulated substance. The move shocked the state’s robust Delta-8 industry, which believed it operated within state and federal laws.

The situation caught even more attention last week when Austin-based Hometown Hero filed a lawsuit to temporarily block the ban. This application was rejected by a district judge. While Delta-8-THC remains illegal in Texas at the moment, a hearing has been scheduled on November 5th to determine the future of hemp-derived cannabinoid in the Lone Star State.

“It really comes out of nowhere. It’s not based on science, it’s not based on a real threat to Texans, ”Rick Trojan III, a board member of the Hemp Industries Association, told the Texas Tribune. “The whole thing is confusing for everyone involved. It sounds like DSHS doesn’t even understand why they know what they’re doing. “

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The complex legal status of Delta-8

Both in Texas and across the country, the hemp-derived cannabinoid Delta-8 THC has grown in popularity over the past year. Congress made hemp legal in the 2018 Agriculture Act. Hemp is cannabis with less than 0.3% Delta-9 THC. Manufacturers are able to extract CBD from hemp and then refine that CBD further into Delta-8-THC.

Delta-8 makers and proponents argue that D-8 products are legal because they come from a legal chain of products that starts with hemp. Opponents argue, however, that Delta-8 THC is subject to the Federal Analogue Act, which also categorizes substances that mimic or approximate the effects of List 1 drugs as List 1.

For the time being, Delta-8 remains unregulated and unrestricted in around 30 states.

In Texas, Delta-8 manufacturers and sellers thought they were clear under state law as well.

In 2019, state lawmakers passed House Bill 1325, which confirmed that hemp plants containing less than 0.3% Delta-9-THC are legal.

As a result, Delta-8 has grown in popularity across Texas, where conventional cannabis remains highly illegal even for medical patients. Countless companies sell Delta-8 products as edibles, vapes, and more. For example, Vape City chain, which has 75 locations across the state, sells Delta-8 products, but took them off the shelves following the recent DSHS policy change.

How was this rule changed?

Retailers are just as frustrated with Texas’ policy change strategy as they are with the ban itself.

State officials, for their part, argue that Delta-8-THC has indeed been illegal since the passage of House Bill 1325 and that its most recent publication is only intended to clarify government policy.

In addition, they have argued that the distinction was announced a year ago and that they even held a public hearing about it in October 2020. However, virtually no Delta 8 dealer knew of the registration or the hearing, partly because, as Kevin Reynolds of the Texas Tribune reported, the notification was only created as an image and not as text. In other words, it was difficult to find online because it wasn’t searchable. Anyone who stayed up to date with a Google warning about hemp or delta-9 THC changes would not have seen any hearing information in the warning. Not a single person appeared at the hearing.

“It was made perfectly clear that by posting meeting notes in opaque locations, the DSHS had denied the public the opportunity to consider proposed changes to the Controlled Substances Act,” Heather Fazio, director of Texans for Responsible Marijuana Policy, told Marijuana Moment .

And now the dealers have decided to take the matter to court.

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Coordinated legal response

Last week, Hometown Hero and Sky Market Corp. Legal action against the state health department and demanded an injunction (TRO) against the ban. Lawyer David Sergi, who represents Sky Market, told State District Judge Gary Harger that “the DSHS stance is turning the hemp definition on its head.”

However, Harger got none of this and refused to block the ban on October 22nd.

However, the case is far from over. Hometown Hero’s CEO Lukas Gilkey has since made several requests to other companies to apply for their own Temporary Injuries (TROs).

“It’s big business. I understand our families’ lives are at stake. A lot of our businesses are at stake,” Gilkey said on a YouTube video. “I know for sure we’re getting one of these damned ones can [TROs] authorized.”

At least one other company answered his call. Vape City filed a lawsuit very similar to that of Hometown Hero and Sky Market Corp. As of this writing, Vape City officials have received no response.

“Right now there is panic in Vape City,” the company’s CEO Ali Sheikhani told CHRON. “People don’t know if we’re selling it. We took out all Delta 8 products. You are confused. What are we going to say to the customers? “

The Delta-8 industry in Texas gets its next day in court on November 5th. Leafly will continue to follow this development.

Max Savage Levenson

Max Savage Levenson probably has the lowest cannabis tolerance of any writer on the cannabis beat. He also writes on music for Pitchfork, Bandcamp and other bespectacled folk. He is the co-host of The Hash podcast. His dream interview is Tyler the Creator.

View article by Max Savage Levenson

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