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Delta-8 THC still off-limits in Texas after judge dismisses request to delay enforcement of ban


A Texas district judge has denied a request from a hemp company that would have immediately delayed enforcement of the state’s prohibition on delta-8 THC.


A formal hearing on the suit is set for Nov. 5.


In his ruling, Judge Gary Harger wrote that the plaintiff’s petition hadn’t met the requirements of a temporary restraining order. If granted, the order would have prevented arrests and criminal charges for possession of delta-8 THC until the matter could be settled in court.


The request for the temporary restraining order was filed Oct. 20 by Texas hemp company, Hometown Hero. The lawsuit was a response to an Oct. 15 announcement from the state’s health department saying it had added delta-8 THC to the state’s list of Schedule I controlled substances.


The agency asserted that lawmakers didn’t need to impose a ban on delta-8 because it is THC, which is broadly illegal in the state regardless of whether it is derived from hemp and low in delta-9 THC. For clarification, delta-9 is the dominant psychoactive compound found in cannabis, and hemp laws allow it in trace amounts. Delta-8 is also psychoactive and occurs naturally in the plant at much lower levels than delta-9. When derived from hemp, delta-8 is the product of lab-processing techniques.


The judge dismissed the request for a restraining order on October 22 and it was announced Oct. 25. A hearing is scheduled November 5 to consider the second part of the suit, a request for a temporary injunction. If granted, this would temporarily stop the state from enforcing the ban on delta-8 products. Hometown Hero also filed a request for a permanent injunction. It was not immediately clear when the judge would consider that final request.


In its response to the lawsuit, the Texas Department of State Health Services argued that its confirmation of delta-8’s illegal status didn’t warrant a restraining order.


“[The] plaintiff’s alleged surprise that tetrahydrocannabinol (THC) remains a Schedule I controlled substance does not merit the extraordinary relief of a temporary restraining order,” DSHS wrote, according to the Texas Tribune. “THC, including Delta-8 tetrahydrocannabinol (Delta-8), has been a Schedule I controlled substance in Texas for over 40 years.”


“The plaintiff’s alleged surprise that tetrahydrocannabinol (THC) remains a Schedule I controlled substance does not merit the extraordinary relief of a temporary restraining order.”

— Texas Department of State Health Services


Hometown Hero owner and founder Lukas Gilkey announced in a video that the company would stop selling delta-8 products until further notice.


“It’s very important that we come together as an industry to fight this,” he added.

The company is now setting its sights on the Nov. 5 injunction hearing.


“I know we’re all sitting on inventory we don’t know what to do with and we’re trying to figure out what are the next steps,” Gilkey said in a subsequent video. “November 5th we have the injunction hearing. We’re bringing in some amazing people to help us with that and really make sure we’re bringing our A-game to the injunction hearing.”


“We’re bringing in some amazing people to help us with that and really make sure we’re bringing our A-game to the injunction hearing.”

— Lukas Gilkey, owner and founder of Hometown Hero


Meanwhile, an executive for a company helping to fund the legal challenge told the Texas Tribune they didn’t plan to give up yet. “Our next steps are to file a new suit that meets the legal burden so we can protect the rights and safety of Texans," said Ben Meggs, the CEO and cofounder of Bayou City Hemp Company.


The Tribune, like other Texas news outlets, reported that as this issue plays out some hemp retailers have pulled their delta-8 products while others continue to sell delta-8.

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