State Ban on Delta-8 Fails in Court (Again)

Lukas Gilkey, Hometown Hero founder (Courtesy of Hometown Hero)

After yet another favorable Delta-8 ruling, it doesn't look like the popular cannabis products will be removed from Texas retail shelves anytime soon. On December 10, the Texas Supreme Court sided with Austin hemp and CBD retailer Hometown Hero, upholding the legality of the THC isomer for the foreseeable future.

For more than a month, Hometown Hero, its founder Lukas Gilkey, and cannabis advocates across the state have been riding a high from repeated victories across the Texas court system. In early November, a Travis County district court issued an injunction in Hometown Hero's lawsuit against the Texas Department of State Health Ser­vices; the agency's attempt to quickly reverse the decision was rebuffed at the 3rd Court of Appeals and now by SCOTX, which left the injunction in place and sent the case back to the appellate court. It could take up to a year for the case to come back on the 3CA's docket – just in time for the 88th Texas Legislature to take a side in the dispute.

The brouhaha began in September, when DSHS posted a notice on the website for its Texas Consumable Hemp Program "clarifying" that Delta-8 had, in January, been added to the state's Schedule I list of controlled substances, possession of which is a felony. As retailers have been selling Delta-8 products for more than a year, thinking they were legal under House Bill 1325 – the 2019 legislation that legalized hemp production – they successfully argued that DSHS had provided insufficient notice for their action.

However, the injunction granted by District Judge Jan Soifer has impacts beyond the specifics of Hometown Hero's procedural complaint, as it applies to all THC isomer products, including Delta-10 and THC-O. Kemal Whyte, owner of Austin-based retailer Grassroots Harvest, sells all those products in his stores and described Delta-10 as similar to Delta-8, and THC-O as slightly stronger. Currently, the only cannabinoid regulated by state law is Delta-9-tetrahydrocannabinol, the main psychoactive ingredient in marijuana; the 2019 bill defined legal "hemp" as cannabis products with less than 0.3% concentrations of Delta-9 THC, but says nothing about other isomers. This is the second case in which DSHS has been shot down for trying to regulate cannabis beyond the authority granted by HB 1325; the first involved the agency's unilateral attempt to ban all smokable hemp products, which was likewise enjoined by District Judge Lora Livingston in 2020.

Whyte believes the legalization of THC isomers is a step toward what he says is the right direction: legalization of recreational marijuana. "We are heading in that direction, but very slowly," Whyte said. "If it were just a matter of safety, we'd be there already."