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Texas appeals court upholds injunction: Delta 8 stays legal

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An Austin appeals court upheld a ruling Thursday reaffirming the legality of Delta 8 THC in the state of Texas. The original ruling, an injunction by State District court judge Jan Soifer, was made in response to the Texas Department of State Health Services reclassification of Delta 8 on their website. The DSHS quietly changed the classification of Delta 8 in October, declaring it a controlled substance. Public outcry shortly followed, spearheaded by an Austin-Based dispensary called Hometown Hero. 

In their lawsuit, Hometown Hero claims the DSHS did not give the public adequate notice of the meeting to determine Delta 8 THC’s legal status, nor did it probably notify businesses of the reclassification. Businesses providing Delta 8 products were operating under the assumption that these products were still legal, as per the guidelines established in both the Federal Farm Bill of 2018 and the Texas Hemp Bill of 2019. 


The DSHS denies, despite the letter of the law

But the DSHS disagrees that Delta 8 would ever be legal, even with those two pieces of established legislation. In a statement shortly after the filling of the lawsuit, they stated that THC in all forms is a schedule 1 controlled substance, despite the wording of the Farm Bill specifically stating that hemp products (those with under 0.3% Delta 9 tetrahydrocannabinol) are legal. 

It seems that the legal system of Austin agrees. Texas’ Third court of criminal appeals justices Melissa Goodwin, Thomas J. Baker and Edward Smith agreed with the injunction on Thursday, and the classification making Delta 8 a controlled substance was removed. Their reasoning, besides the clear guidelines set by hemp legislation, is that the “status quo” should remain as the lawsuit proceeds. This prevents small businesses from being negatively impacted while the legal system sorts out who is in the wrong. 


Advocates for Delta 8 speak up

But who is in the wrong seems relatively cut and dry, according to hemp advocates. Head of the Texas Hemp Federation, Jay Maquire, said that the appeals court decision will help further cement Delta 8’s legality in the Lone Star State. The THF is assisting Hometown Hero in their court battle, and Maquire has personally testified on their behalf. 

“Millions of Texans use Delta 8 products for relief of pain, anxiety, inflammation, and PTSD every day,” Maquire said, “We’re here to defend their access to relief others would deny them.” 

So for now, Delta 8 THC remains legal in Texas. But as the lawsuit continues, advocates and business owners alike can only hope the justice system continues to uphold their rights.