Texas Hemp Sellers Take a Hit Amid Legality of Delta-8 THC

By Jaxie Pidgeon

Reporting Texas TV

Nov. 9 Update: District Court Judge Jan Soifer granted a temporary injunction Monday against the Texas Department of State Health Services, making delta-8 THC temporarily legal in Texas.

Soffer’s ruling said in part:

After considering the pleadings on file, the admissible evidence, and the arguments of counsel, the Court GRANTS the Plaintiffs’ Application for a Temporary Injunction. 

IT IS FURTHER ORDERED, ADJUDGED, and DECREED that a final trial on the merits is set for January 28, 2022.

_________________________________________________________________

TRAVIS COUNTY, Texas – The Texas Department of State Health Services (DSHS) recently clarified that delta-8 tetrahydrocannabinol (THC) in any concentration is considered a Schedule I Controlled Substance.

The Oct. 15 update to the Consumable Hemp Program page now states: “​​All other forms of THC, including delta-8 in any concentration and delta-9 exceeding 0.3%, are considered Schedule I controlled substances.”

The Food and Drug Administration (FDA) website states:

“Delta-8 tetrahydrocannabinol, also known as delta-8 THC, is a psychoactive substance found in the Cannabis sativa plant, of which marijuana and hemp are two varieties. Delta-8 THC is one of over 100 cannabinoids produced naturally by the cannabis plant but is not found in significant amounts in the cannabis plant. As a result, concentrated amounts of delta-8 THC are typically manufactured from hemp-derived cannabidiol (CBD).”

Texas DSHS declined an interview request due to pending litigation, but DSHS spokesperson Lara Anton said the clarification came at the request of hemp growers who said there was confusion in the industry. 

“DSHS has not made any changes to the controlled substances schedule related to THC since it was published in March 2021,” Anton said.

“THC was already on Texas’ Schedule I when the Legislature gave scheduling authority to the Commissioner of Health in 1989, and it has remained on Schedule I since that time.”

Many hemp retailers said they were surprised by the update that deems the popular hemp product as illegal.

In April, Jeana Aliani helped her son Tijani open Morning Dew Farms Cannabis. Their first event was the inaugural Texas Hemp Harvest Festival at Carson Creek Ranch.

The small-batch farm sells a variety of hemp products Aliani said are within federal and local legal limits. Some of the products include delta-8 THC.

“They want delta-8. It’s our first day selling our products, and it’s over half of our sales,” Aliani said.

Greg Autry is the founder of Sweet Sensi CBD. He has 25 years of experience in the cannabis industry. 

As a manufacturer, Autry does not make products containing delta-8, but he said the Texas farmers that do are following the rules.

“It’s clean delta-8. There are no contaminants in it, there is no junk in it,” Autry said. “Where you see that from is people that are cutting corners in other states and trying to make a buck off it. In Texas, they’re genuine about it, and I think it’s because we’re an agricultural state.”

He said a lot of the retailers his company supplies to are reliant on their delta-8 sales.

“My farmers are living off that at their bare level and the retail level. They can’t exist without it,” Autry said.

According to the FDA, delta-8 THC has psychoactive and intoxicating effects similar to the well-known delta-9 THC, the main psychoactive ingredient of the Cannabis sativa plant. With marijuana being illegal in Texas, many have turned to delta-8 THC to fill that void.

Dr. Calvin Trostle, a soil and crop sciences professor at Texas A&M University, said delta-8 has been viewed by many as a “legal high.”

“It does have some narcotic properties. They are not necessarily the same as marijuana, but it has been a way for some people to circumvent the laws regarding delta-9 THC,” Trostle said.

The Agriculture Improvement Act of 2018, widely known as the 2018 U.S. Farm Bill, removed cannabis products with less than 0.3% THC from the Schedule I Controlled Substance list. 

In June 2019, Gov. Greg Abbott signed House Bill 1325 which legalized hemp products with less than 0.3% THC. 

Trostle said there will be court challenges because of the way the federal law is worded.

“It’s cloudy, it’s gray, and unfortunately, we will probably need some time, possibly court action to help sort things out. Once that occurs, then things should be more clear in terms of what the opportunities or the limits are going forward,” he said.

Aliani said delta-8 was never explicitly mentioned in federal or state legislation. She said without delta-8, Texas hemp companies will take a toll.

“Delta-8 has been selling in Texas since hemp has become legal here,” Aliani said. 

“Changing the legislation in Texas would dramatically affect at least half of the sales for everybody.”

On Oct. 22, Austin hemp company Hometown Hero requested a temporary restraining order against DSHS to have delta-8 taken off the Schedule I Controlled Substance list. State District Judge Gary Harger denied the request.

“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 in his ruling.

Hometown Hero is preparing for its application of temporary injunction with a remote hearing scheduled for Nov. 5 at 9 a.m. on the Central Docket of the Travis County District Court.