Texas Judge Blocks State’s Delta-8 THC Ban

A Texas judge has issued a temporary injunction blocking the state’s prohibition on Delta-8 THC, ruling that regulators may have acted improperly when they banned products containing the controversial cannabinoid. The ruling temporarily removes Delta-8 THC from Schedule I of the state’s list of controlled substances and allows retailers to resume selling goods containing the hemp-derived compound.

State district court Judge Jan Soifer issued the temporary injunction on Monday in response to a request from Hometown Hero, an Austin CBD dispensary that filed a legal action challenging the Delta-8 ban, ruling that regulators had failed to follow state requirements for issuing new rules. The Texas Department of State Health Services (DSHS) revealed last month that it had ruled that Delta-8 THC is a Schedule I substance under state law, despite the federal legalization of hemp and hemp products with the 2018 Farm Bill.

“DSHS posted the clarification below on our website in response to recent requests from hemp growers who said that there was confusion in the industry about what was allowed in consumable hemp products,” Lara Anton, a spokesperson for the agency told the Texas Tribune in October.

The health department wrote online on October 15 that consumable hemp products containing amounts of THC consistent with federal law are also legal under House Bill 1325, which was passed by state lawmakers in 2019 to regulate the Texas hemp industry. However, “All other forms of THC, including Delta-8 in any concentration and Delta-9 exceeding 0.3 percent, are considered Schedule I controlled substances,” the DSHS noted on its website.

Hometown Hero and other retailers challenged the ruling, arguing that retailers had not been properly notified of a hearing that led to the decision by DSHS Commissioner John Hellerstedt to prohibit Delta-8 THC. Ben Meggs, CEO of Bayou City Hemp and Third Coast Blends, is backing the legal action brought by Hometown Hero and applauded the temporary injunction issued in the case.

“This is a strong first step in reaffirming the fact that Delta-8 is a legal cannabinoid in Texas, and it would not have been possible without the efforts of Hometown Hero and Vape City’s bold, swift efforts,” Meggs wrote in an email to High Times. “With that said, this is a temporary injunction, and we will continue supporting Hometown Hero in this battle so there’s no confusion or gray area on Delta-8.”

Delta-8 THC Popular and Controversial

Products containing Delta-8 THC have become extremely popular with consumers since the federal legalization of hemp, particularly in states that have yet to fully legalize marijuana. But the mildly psychoactive cannabinoid, which is commonly referred to as  “weed light,” is not without its detractors. More than a dozen states have passed laws or regulations banning the compound, and many in the licensed cannabis industry would like to see Delta-8 THC regulated.

Stuart Tomc, vice president of business development at California CBD products company CV Sciences, says that his company “and many others within the regulated cannabis community would suggest that these unregulated products represent a major consumer safety issue.”

“Delta-8 products can be chemically synthesized in a lab with no oversight by using other phytocannabinoids, like CBD, as a starting point,” Tomc said in an email. “Many of these products that are available particularly in states where cannabis remains illegal have not been tested and could include heavy metals, pesticides, and microbes—all potential sources of contamination —leaving consumers at risk.”

Joe Bayern, CEO of cannabis multistate operator Curaleaf agreed, saying the company strongly feels “that any product containing any psychoactive cannabinoids must be regulated in the same manner as inhalable or consumed cannabis products in the adult use market” and noted that organizations including the U.S. Cannabis Council and the U.S. Hemp Roundtable hold similar positions on the substance.

“Regulating the Delta-8 compound is critical to avoid similar issues the industry saw with the vape crisis in 2019—when products from the unregulated market caused major health issues for consumers and damaged public trust for the entire industry,” Bayern wrote in an email.

However, representatives of Texas’ growing hemp industry are fighting efforts to ban Delta-8 THC, saying that consumer demand for the products has been a boon for operators throughout the state’s supply chain.

“Delta-8 isn’t made in grow rooms or on farms. It’s actually synthesized in the labs that create the CBD oil that we’re all familiar with. When those labs are able to sell more oil to the marketplace, it means they’re more prone to buy from hemp farmers in this state,” Zachary Maxwell, the president of Texas Hemp Growers, told local media.

Soifer’s temporary injunction halting the Texas Delta-8 THC ban is slated to be in place while the suit challenging the prohibition is heard by the court, allowing retailers to continue selling the products. But Hometown Hero CEO Lukas Gilkey said that he expects DSHS to challenge the ruling.

“We are expecting the state to appeal this immediately,” Gilkey said in a two-minute video posted to YouTube. “But it shouldn’t change anything, and we should be able to keep proceeding going forward.”

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