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Did Texas Make Delta-8 Illegal?

William Clark November 19, 2021 0 comments

Cannabis laws are never straightforward and there is often confusion surrounding Delta-8 THC. Recently there has been a lot of talk in Texas about the legality of Delta-8 and whether consumers can still purchase the cannabis product without fear of arrest. 

Before we look at the recent legal battles surrounding Delta-8 in Texas, it is a good idea to briefly discuss the national laws regarding cannabis.

2018 Farm Bill

President Trump signed the 2018 Farm Bill into law on December, 20, 2018 and it had a lot of ramifications regarding cannabis. THis is because it made clear distinctions between hemp and the Schedule 1 substance marijuana. 

The bill legalized hemp and hemp products that contain low amounts of Delta-9 THC, specifically less than .3%. While that is a low amount of Delta-9 for psychoactive cannabis and medical marijuana, the bill did not address Delta-8 THC, Delta-9’s weaker counterpart. 

This essentially made it legal to grow and possess hemp products that contained Delta-8 as long as they did not contain more than .3% Delta-9. While synthetic Delta-8 is a DEA controlled substance, natural concentrations of Delta-8 are not. 

However, even though Delta-8 remains legal for now at the national level, many states have implemented laws of their own that ban the substance. Inh 2019, Texas passed House Bill 1325 that, like the U.S., legalized hemp growing as long as the THC concentrations were under .3%.

Until recently, Texas hadn’t seriously addressed the Delta-8 compound, but that all changed a few weeks ago. 

Find out Is Delta-8-THC Legal In Your State?

Texas Says Delta-8 is Illegal

In October, 2021, The Texas Department of State Health Services (DSHS) updated their website. Before, there was no mention of Delta-8, but they added clarification stating that the organic compound was, in fact, illegal all along. In fact, DSHS claimed that there were no changes made and that Delta-8 has been illegal and on the controlled substance list since 1989 under the classification of THC and Cannabimimetic Substances.

This recent clarification makes Delta-8 a punishable offence and could lead to felony charges. An arrest related to Delta-8 could be punishable by up to two years in prison and a hefy $10,000 fine. 

For the past few years, Delta-8 has been a popular choice for Texas residents that was available in stores across the state. People use it for a variety of reasons and many consumers even prefer it to Delta-9 because of reduced side effects. 

After this clarification, many store owners, consumers, and concerned citizens feared that they would not have the substance anymore and would have to turn to illegal substances or suffer. So, they pushed back. 

The Cannabis Industry Fights Back

Not long after the Texas Department of State Health Services specifically added Delta-8 to their website, businesses and consumers raised their alarms. A CBD dispensary in Austin called Hometown Hero placed a request to state district court Judge Jan Soifer in an attempt to block the state from listing Delta-8 as a Schedule I controlled drug.

Judge Soifer granted a temporary injunction against the state, thereby making Delta-8 legal again…for now. The company, Hometown Hero, argued that the notice placed on the DSHS websites in October did not properly notify business owners and Delta-8 retailers. Because of this, the action by DSHS did not comply with the state’s codes regarding rule-making. 

While the state is expected to appeal this recent ruling and claims that a notice in the Texas Register, a public hearing that nobody came to speak at, had testimony by a DSHS official last May. Therefore, they did provide adequate notice to retailers before the change was made on their website. Only time will tell if the state and DSHS actually violated due process. 

The Future of Delta-8 in Texas

Some Texas residents are hopeful for the future of Delta-8 and believe that the law is on their side. Others are more pessimistic and believe that it is only a matter of time before they will not be able to buy Delta-8. One thing that is sure is that the fight for Delta-8 is shaping up to be a long, drawn-out legal battle.

Some residents are already stocking up on Delta-8 just in case it becomes banned in the future. Others are avoiding it until they learn the legal ramifications of possession. Advocates for cannabis point to other states where Delta-9 is available recreationally and say that Texas needs to catch up. They say that Texas is behind in the times and still has an archaic outlook on cannabis. However, as a conservitive state, it is unlikely that many Republican legislators will suddenly shift their thinking and believe that THC should be legal with regulations. 

If you are a Texas citizen, then it is a good idea to keep an eye on the battle as it moves through the courts and appeal process. Some residents are even volunteering for pro cannabis groups like NORML to show their support for Delta-8 and the benefits that it can offer. 

For now, anyway, you can buy Delta-8 and have it legally shipped to your home in Texas. Many people prefer Delta-8 gummies, but there are a lot of products available including D8 flower and vapes. With the future uncertain, it may be a good idea to get it while you can without facing arrest. 

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