Delta-8 Temporarily Made LEGAL in Texas

Delta-8 Temporarily Made LEGAL in Texas
  • State district court Judge Jan Sofeir allows legal selling and obtaining of delta-8 in Texas temporarily.
  • The legal case between Hometown Hero and DSHS will be decided in a final trial scheduled for January 2022.

Delta-8, a less potent psychoactive substitute to delta-9 THC, was recently outlawed until Texas State District Court Judge Jan Soifer ruled last October 8, 2021, in favor of legalizing obtaining and selling delta-8 in the state of Texas temporarily.

RELATED: Delta 8 Products: Important Facts You Should Know

The decision by Judge Jan Soifer was part of the latest judicial challenge stemming from the legal battle on delta-8 between the Texas Department of State Health Services or DSHS and an Austin-based CBD company, Hometown Hero.

Hometown Hero applied for a temporary restraining order on Oct. 21 to a notice by the DSHS declaring delta-8 as a Schedule I drug, which effectively made it illegal.

According to court documents, the judge dismissed the initial lawsuit because “the plaintiff has not completed the requirements of a temporary restraining order.”

The state is anticipated to file an appeal. It maintains that a notice in the Texas Register, a public hearing at which no one spoke, and the DSHS official’s legislative testimony in May were sufficient notices for delta-8 to be made illegal before it was even published as “prohibited” online. 

CBD shops across the state began selling delta-8 under the premise of the Farm bill in 2018 and a state statute, House Bill 1325, legalizing hemp production and sale. 

The Farm Bill redefined “lawful marijuana extracts” to cover any extract with less than 0.3 percent tetrahydrocannabinol (THC), a principle that applies to Delta-8.

RELATED: How is CBD Extracted from Hemp? Which is the best method?

According to DSHS’s response to the lawsuit, the state hemp law “did not — and was not intended to — allow for the manufacture and sale” of delta-8 products because it did not explicitly mention it.

“We expect the state to file an appeal right away.” But it shouldn’t change anything, and we should be able to keep proceeding going forward,” Lukas Gilkey, the CEO of Hometown Hero, said in a two-minute YouTube video.

The temporary injunction, according to Michelle Donovan, an attorney for Vape City, a CBD retailer that has filed a separate case, returns the state to the status quo, but she warned that “there is a long road ahead” in the broader legal challenges.

Delta-8 has swiftly become a new commodity, and its expanding appeal has brought with it a new level of scrutiny. 

Among this scrutiny is the long overdue lawsuit in Texas between a local CBD shop and the DSHS on whether delta-8 should be considered legal or illegal in the state.

Despite the fact that some states have legalized marijuana for recreational or therapeutic purposes, the plant remains classified as a Schedule I narcotic by the Drug Enforcement Administration, a classification designated for drugs with high potential for abuse and no medical use.

Hemp, which is defined as a cannabis plant with 0.3 percent delta-9 or below — levels considered too low to have a psychoactive effect — was legalized as a result of the 2018 Farm Bill. 

The bill, however, does not address delta-8 THC levels, an omission that allows vendors to sell the compound without regulation, such as edibles, vape cartridges, and tinctures.

14 states — Alaska, Arizona, Arkansas, Colorado, Delaware, Idaho, Iowa, Kentucky, Mississippi, Montana, New York, Rhode Island, Vermont, and Utah — have recently enacted legislation prohibiting the sale of delta-8 due to a lack of study on the compound’s psychoactive effects. However, not all states consider the substance to be a health hazard. 

Is delta-8 a felony in Texas?

Prior to the court’s ruling of decriminalizing delta-8, any form of possession or transaction with the said compound can be classified as a felony. Anyone in possession of delta-8 products might face a felony charge punishable by up to two years in jail and a $10,000 fine due to the chemical’s designation as a controlled substance.

At least for now, CBD retailers are in the clear to keep selling Delta-8 products. The final verdict is set to be given in January 2022, which might change the course of delta-8 for better or for worse.

Can you still buy delta 8 in Texas?

There was so much doubt about whether delta-8 could be sold two years after the state’s hemp statute was passed that the Texas health office updated its website on Oct. 15 to clarify that delta-8 was a Schedule I substance and hence forbidden. 

It says that, despite the fact that delta-8 was available for purchase in stores, it was never permitted in Texas because the 2019 law made no mention of it.

The state’s announcement did little to explain the situation. Retailers sued, and the state is now facing a slew of litigation aimed at preventing DSHS from making delta-8 illegal. On Monday, State District Judge Jan Soifer in Austin issued a temporary restraining order against the state, allowing delta-8 to operate for the time being.

Hemp-derived delta-8 THC (with less than 0.3 percent THC) is now legal to buy and sell in Texas as of November 8th.

The Wrap

As of the moment, delta-8 retailers and users can legally sell and obtain the drug as the Travis County judge temporarily slabs the state from registering delta-8 as a controlled substance.

The long legal battle over delta-8’s legality in the state of Texas, however, is far from over. This January 2022, the court is set to finally make its final ruling over the compound’s legality in the area.

Will the delta-8 substance finally be completely legal over the state of Texas, or will this be the final stretch for its retailers and users?

“These statements have not been evaluated by the Food and Drug Administration. This product is not intended to diagnose, treat, cure, or prevent any disease.”

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