The Uncertain Legal Status of Delta-8 THC in Texas
Goal: Discuss the current legal status of Delta 8 THC in Texas and review the complicated history of its legal status and user experience.
On Monday, November 8th, the Texas hemp industry scored a significant victory after state District Judge Jan Soifer granted a request for a temporary injunction against Texas’ ban on Delta-8, a request previously denied on October 25th. Delta-8 THC, also called Delta-8 tetrahydrocannabinol or Delta-8 THC, is found naturally in the Cannabis sativa plant and is viewed as a less potent alternative to Delta-9 THC. The injunction resulted from a suit filed by the cannabis company Hometown Hero, which argued that the Texas Department of State Health Services (DSHS) improperly revised its hemp policy to specifically prohibit products with more than trace amounts of THC isomers other than Delta-9, the most common psychoactive component of cannabis. Per the November 8th ruling, cannabis professionals are temporarily permitted to sell Delta-8 THC products in Texas, although it is highly likely that the state will appeal this decision. This ruling follows years of confusion regarding the legality of Delta-8 products, as well as the safety of Delta-8 itself. The FDA has warned that some Delta-8 THC products could pose health risks. The administration recently acknowledged adverse event reports in this past year involving 22 patients who reported side effects included vomiting, hallucinations, and other issues. The FDA also voiced concerns related to the production process of Delta-8, which can be synthetically produced by converting hemp-derived CBD and therefore may involve unsafe household chemicals depending on the manufacturer. Still, other anecdotal reports suggest a vastly different experience with Delta-8 products. The Texas plaintiffs and other consumers reportedly use Delta-8 products to treat anxiety, depression, insomnia, migraines, loss of appetite, chronic pain, and nausea. Access to these products, the signed November 8th ruling argues, ensures these individuals are not forced to “seek other dangerous alternatives, like opioids or street drugs.”
The ambiguity around Delta-8’s safety and health effects extends to its legal status, which stubbornly rests in a gray area. Confusion among both consumers and producers began with the 2018 Federal Farm Bill, which removed hemp from the list of federally recognized controlled substances. Delta-8 is derived from hemp, which is federally defined as cannabis with 0.3% or less of Delta-9 THC in it, whereas marijuana is cannabis that contains more than 0.3%. Because Delta-8 is not addressed in this bill nor in the 2019 House Bill 1325, legalizing production and sale of hemp products in Texas, the legality of the product was assumed. Yet according to TX state health press officer Lara Anton, HB 1325 did not legalize Delta-8 because hemp is legally defined as, containing 0.3% or less Delta-9 THC – not Delta-8. “At the request of hemp growers who said there was confusion in the industry, DSHS posted the clarification statement at the top of the Consumable Hemp webpage last month,” said Anton. Expectedly, this spiked confusion and frustration among Hometown Hero staff and other cannabis industry professionals. “How do you, as a state, take 10,000 people and make them (eligible) felons overnight?” asks Hometown Hero CEO, Lukas Gilkey Although DSHS insists that THC – and therefore Delta-8, as an isomer of THC – has been on Texas’ Schedule I Controlled Substances list since 1989, state troopers in TX have made no arrests concerning the sale or possession of Delta-8 products. As of now, the increasingly popular cannabis derivative can be sold legally in vape cartridges, tinctures, and candy at CBD stores across Texas. Yet industry professionals predict a long road ahead for sellers and consumers of Delta-8. More than likely, the ensuing battle will establish legal precedent that expands beyond state boundaries, prompting further research and discussion of the safety concerns, economic benefits, and health uses of Delta-8 and other isomers of THC.
Take-Aways:
- The recent November 8th ruling in Texas regarding Delta-8 THC grants temporary legal status to the isomer of THC, but industry professionals expect the state to appeal the decision.
- For now, cannabis professionals are free to sell products with Delta-8: an isomer of THC that exists in a legal gray area and has prompted safety concerns regarding its production and health benefits.
- Consumers, sellers, and producers have expressed frustration with unclear legal definitions of Delta-8 and other THC isomers, calling for increased legal clarity to ensure safe and reliable access to Delta-8 products.
Editors’ Note: This is an excerpt from our Monthly Playbook. If you would like to read the full monthly playbook and join the thousands of others you can sign up below.
