Is Delta-8 legal in Texas? For now — but confusion, frustration over state's 'clarification' abounds
Delta-8 THC, a less potent alternative to marijuana’s Delta-9 THC that has recently come under scrutiny, once again can be legally sold in Texas — for now.
On Monday, state District Judge Jan Soifer granted a hemp retailer’s request for a temporary injunction against the state's ban on Delta-8. The request was previously denied in a ruling on Oct. 25. The state is expected to appeal.
Hemp retailer Hometown Hero CBD filed its request for injunction against the Texas Department of State Health Services on Oct. 20, claiming that the agency violated state law when it updated its website on Oct. 15 to state that Delta-8 THC in any concentration is considered a Schedule I controlled substance, and therefore illegal, in the state of Texas.
“DSHS modified the Schedule of Controlled Substances in blatant violation of state law through multiple errors and in a manner that failed to properly notify the public of its significant positional change,” the lawsuit alleged.
Schedule I drugs have “no safe, accepted medical use” according to Texas officials. Schedule I drugs include marijuana, heroin, PCP and crack cocaine.
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History of Delta-8 battle
The battle over Delta-8 has left hemp businesses across the state, many of which have been selling Delta-8 products for years — and believed they were doing so legally — confused and frustrated.
Confusion over Delta-8 dates back to the 2018 federal Farm Bill, which removed hemp — from which Delta-8 is derived — from the list of federally recognized controlled substances. Hemp is defined by the federal government as cannabis with 0.3% or less of Delta-9 THC in it, whereas marijuana is cannabis that contains more than 0.3%.
Then in 2019, the Texas Legislature passed House Bill 1325, signed by Gov. Greg Abbott, which legalized the production and sale of hemp products, granted that they stay at that 0.3% or less Delta-9 THC level.
But the 2018 Farm Bill allows individual states to diverge from the federal controlled substance schedule, and Department of State Health Services Commissioner John Hellerstedt did just that in September 2020, when he rejected the Drug Enforcement Agency’s modification to legalize all hemp products, including Delta-8 THC. DSHS published an official notice declaring Delta-8 as a Schedule I drug on the Texas Register in January 2021, as The Dallas Morning News reported last month.
Texas claims Delta-8 was never legal and offered 'clarification' at request of hemp growers
As for HB 1325, which legalized the production and distribution of hemp products in Texas, state health press officer Lara Anton told the Statesman that HB 1325 didn’t legalize Delta-8 THC because it only legalized products containing hemp, and hemp is defined on the state and federal level as cannabis that contains 0.3% or less Delta-9 THC — not Delta-8.
“HB 1325 does not address any other isomer of THC,” Anton said. “At the request of hemp growers who said there was confusion in the industry, DSHS posted the clarification statement at the top of the Consumable Hemp webpage last month.”
However, seeing that Delta-8 THC is derived from hemp and therefore can be considered a hemp product, cannabis industry professionals have for years been operating under the assumption that the substance is legal.
“How do you, as a state, take 10,000 people and make them (eligible) felons overnight?” CEO of Hometown Hero Lukas Gilkey told the Statesman in an interview. “That’s crazy. The day before they were perfectly fine doing what they were doing.”
If Delta-8 ends up being classified a Schedule I drug, an individual caught for possession could receive a felony charge, punishable by up to two years in prison and a $10,000 fine.
On Oct. 5, a woman was arrested in Bryan for Delta-8 possession, KBTX reported.
According to Anton, law enforcement would be responsible for investigating possession.
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Delta-8 distributors, buyers confused and frustrated over state's stance
Gilkey founded Hometown Hero in Austin in 2015 with his friend Lewis Hamer. It began as a distribution company for vape shops, and when hemp was legalized in Texas in 2019, they moved into selling their own hemp-derived products, primarily products containing CBD and Delta-8. From the start, the mission of Hometown Hero has been to support U.S. veterans, and a portion of their proceeds goes to a veterans charity.
Selling hemp products is a part of that mission, Gilkey said. A veteran himself, Gilkey has seen first-hand the toll that war trauma can take on veterans. Cannabinoids, he said, can help veterans ease anxiety and post-traumatic stress.
“There are a lot of veterans in Texas, and veterans are consistently the people that respond to us saying, ‘Hey, these products are amazing. They've changed my life. They allow me to go outside without anxiety and other stuff, they help with our PTSD,’” Gilkey said. “Almost every single one of the testimonials we receive references somebody's cancer, their chemotherapy, their sleeping issues, their eating issues or their PTSD.”
Jay McGuire, executive director of trade association Texas Hemp Federation, which is working with Hometown Hero to fight for Delta-8 legalization, said he does not believe DSHS is acting in the best interests of Texans.
“What DSHS is doing is basically the latest iteration of the war on drugs,” McGuire said. “It is part of the culture war. It is very clear that Texans want cannabis to be legal. DSHS is out of touch."
According to a poll conducted earlier this year by the University of Texas and the Texas Tribune, 87% of Texans believe marijuana should be legalized in some capacity, with 29% wanting full legalization.
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For Austin resident Samantha Peters, Delta-8 gummies have been the cure to lifelong sleep issues. Delta-8 THC has also been a “godsend” for the sleep issues and pain of Peters’ father, who has had six surgeries to treat his spinal stenosis.
“My dad has been on every pharmaceutical you can think of, and he has a lot of organ damage from the pharmaceuticals. So, this is a great way to eliminate some of those,” Peters said. “For me to not be able to get that for him anymore makes me nervous, because it’s been such a vital thing for him.”
Oz Millman, the owner of Austin hemp supplier Green Herbal Care, said that since he expanded his originally CBD-only shop to include Delta-8 products, they’ve come to account for 90% of his sales.
The future of stores like Millman’s up in the air. But for his part, things at Green Herbal Care have continued “business as usual” over the past month.
“There was no real change in law, no real change in enforcement, just a change on a webpage,” Millman said. “I’ve heard from customers that other stores have taken products off shelves, which we are not going to do until there is a concrete decision.”
At least for now, Millman and fellow CBD retailers are in the clear to keep selling Delta-8 products. But the state is expected to appeal the judge's ruling.
“The fight isn't over," Gilkey said in a recent YouTube video. "We are expecting the state to appeal this immediately, but it shouldn't change anything, and we should be able to keep proceeding going forward."