Delta 8 THC Legal in Texas after Judge denies Declaration
State district court judge Jan Soifer grants a temporary injunction against DSHS
After a brief period of illegality, Delta 8 is once again legal for purchase and consumption in the state of Texas. Following an October 15th notice put out by the Texas Department of State Health Services, the drug was classified as a schedule 1 narcotic within the state. An Austin-based CBD dispensary by the name of Hometown Hero put in a request to a judge related to the notice, stating that retailers were not adequately notified.
Initially their request was denied, with state district judge Gary Harger releasing a statement shortly after.
“Based upon the pleadings and arguments of counsel, the Court finds that Plaintiff has not met the requirements of a temporary restraining order,” Harger said, setting another hearing date for November 5th.
This would mark the first legal challenge to Delta 8 since the establishment of the 2018 Farm bill, which legalized hemp and hemp related products. After this ruling, the DSHS published it’s notice placing Delta 8 under it’s new scheduling designation, making it illegal.
The District Court’s Response
In response, State district court judge Jan Soifer granted a temporary injunction against DSHS and the state to ensure that neither selling nor possession of Delta 8 THC would be against the law. Soifer said that DSHS didn’t comply with the state’s rule-making requirements, and therefore the declaration was invalid.
DSHS claims that it did give notice in the Texas Register, in the form of a public hearing and legislative testimony in May. The meeting in question was not widely advertised or attended by a single member of the public, but DSHS is claiming this meeting was in-fact the notice legally required before the schedule change was announced online.
DSHS criticizes bid to keep Delta 8 THC legal
In a statement released in response to lawsuits filed by Hometown Hero, DSHS harshly criticized the company for believing Delta 8 would ever fall within legal boundaries.
“[The] plaintiff’s alleged surprise that tetrahydrocannabinol (THC) remains a Schedule I controlled substance does not merit the extraordinary relief of a temporary restraining order,” DSHS wrote in its response to the lawsuit. “THC, including Delta-8 tetrahydrocannabinol (Delta-8), has been a Schedule I controlled substance in Texas for over 40 years.”
Businesses show their Support
Other Delta 8 and CBD business owners have spoken out in support of Delta 8, with Bayou City Hemp CEO Ben Meggs voicing his support of Hometown Hero’s upcoming lawsuit. The lawsuit is intended to block DSHS from taking further action in outlawing Delta-8 and any related products.
“This is a strong first step in reaffirming the fact that Delta-8 is a legal cannabinoid in Texas,” Meggs said. He also stated he would continue supporting any legal battle “so there’s no confusion or gray area on Delta-8.”
The Federal Federal Farm bill, which legalized hemp and CBD products, was specific in it’s selection of what cannabinoids constituted illegal marijuana. With Delta-9 being the specific selection, Delta-8 THC should be perfectly legal by federal law. As long as any product contains less than 0.3% Delta-9 THC, it should be protected under the 2018 Farm bill.
DSHS Denies Mistake
But DSHS says that simply not mentioning a cannabinoid doesn’t mean it’s exempt from illegalization. They stated that the Farm bill was not meant to legalize Delta 8 products, and they intend to fight Hometown Hero’s lawsuit. Lukas Gilkey, CEO of Hometown Hero, made a statement shortly after the DSHS released their Delta 8 notice.
“We are expecting the state to appeal this immediately. But it shouldn’t change anything, and we should be able to keep proceeding forward,” Gilkey said in a YouTube video. His company isn’t the only one filing a lawsuit, with other Texas-based Delta 8 providers taking their own legal action.
As it stands now, Delta 8 remains legal in the state of Texas. But with legal fights on the horizon, the future of Delta 8 in the Lonestar state is uncertain. For now, you can still purchase Delta 8 online if you live in the state, but that may change.