Delta-8 v. Texas: The Court Challenges Begin

Photo by John Anderson

The Texas Department of State Health Services' surprise announcement that the popular Delta-8 cannabis products found on retail shelves throughout the state are illegal has led to swift courtroom action. On Friday, Oct. 22, District Judge Gary Harger in Austin declined to grant a temporary restraining order sought by CBD distributor Hometown Hero, agreeing with DSHS that the Delta-8 kerfuffle is not really an "emergency," but has set a Nov. 5 hearing to consider the company's claims. A similar request was made this week by the Vape City smoke shop chain, based in Houston, and CEO Kemal Whyte of Grassroots Harvest – which makes and markets the Austin Chronic line of Delta-8 products in partnership with this newspaper – has indicated his company is also filing suit.

The state's position is that Delta-8 – an isomer of the Delta-9 THC found in regular old marijuana (or "marihuana," in Texas statutes) – has always been illegal to possess or sell in Texas, and the Oct. 15 update of the DSHS Consumable Hemp Program website simply clarified rules that have been in place since January. While a handful of arrests have been made since then in cities including College Station, many law enforcement agencies shared the industry's understanding that the federal Farm Bill in 2018 and Texas' subsequent 2019 hemp legislation, House Bill 1325, legalized any cannabis product that contains less than 0.3% concentration of THC, including Delta-8, which neither piece of legislation mentions. Millions of dollars are riding on the outcome of the litigation to resolve this standoff, as retailers like Vape City sit on mountains of product that two weeks ago was flying off the shelves, but which now may leave the businesses vulnerable to criminal drug charges simply for having it in stock.

The Hometown Hero case, and the Nov. 5 hearing in Harger's court, call into question not just Texas' ability to keep Delta-8 on the state's schedule of controlled substances (a decision that ostensibly rests solely with state health authority Dr. John Hellerstedt), but also the validity of DSHS' rule­making process; the agency apparently got no public input whatsoever at its required hearing on the new rules, which industry leaders and lobbyists didn't know was happening. While the state prevailed last week, it hasn't always been in the winner's circle; last year, DSHS was slapped down hard by Harger's benchmate Lora Livingston, who ruled that its attempts to make smokeable hemp products illegal via similar opaque rulemaking violated both producers' and consumers' constitutional rights.