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Scratch that: Delta-8 off limits in Texas (again) after health department files appeal

State troopers holding off on arrests.

Delta-8 THC is once again off limits in Texas, reports the Dallas Observer.

Hemp retailers had about two days to celebrate after district court judge awarded a temporary injunction that paused enforcement of a ban put in place by the Texas Department of State Health Services.

But November 10, DSHS filed a “notice of interlocutory appeal” that overrides the temporary injunction, according to Observer reporter Jacob Vaughn.

“Wednesday's notice of appeal essentially cancels out that injunction,” Vaughn wrote, “meaning delta-8 and other THC isomers are back on the Schedule 1 controlled substances list again.”

"Wednesday's notice of appeal essentially cancels out that injunction, meaning delta-8 and other THC isomers are back on the Schedule 1 controlled substances list again.”

— Jacob Vaughn for the Dallas Observer

The state’s appeal is not entirely unexpected. Lukas Gilkey, owner and founder of the hemp company on the other side of the lawsuit, had mentioned the likelihood of this outcome in a video published shortly after the judge awarded the temporary injunction.

Gilkey's is a military veteran who founded his company, Hometown Hero, with the mission of helping veterans find relief from post-traumatic stress disorder, seizures and chronic pain.

By the filming of a subsequent video on Veterans Day, November 11, Gilkey's legal counsel had filed a counter motion to the state’s appeal, and said the state had until November 15 to respond.

“When we get an injunction granted the state is automatically triggered, is my understanding, to file an appeal,” he said. “And then the appeal has to go to an appellate court. We have a deadline for the state to respond by Monday, the 15th, and then we should have a ruling shortly after.”

State Troopers Hold Off on Arrests

Gilkey also highlighted a news report saying that in spite of the state’s ban on delta-8 THC, state troopers hadn’t arrested anyone.

And according to the article, published by Houston NBC-affiliate KPRC-TV, the state’s law enforcement agency doesn’t plan to. At least until there’s a law in the books.

“[The Texas Department of Public Safety] will continue to base its enforcement efforts on current statute,” Ericka Miller, a DPS spokesperson, told reporter Kevin Reynolds.

“And because there's no law against the substance, there have been no arrests by state troopers,” Reynolds added.

A spokesperson for the Texas Department of State Health Services defended the agency’s right to regulate delta-8 and all other forms of THC.

"THC was already on Texas’ Schedule I when the Legislature gave scheduling authority to the Commissioner of Health in 1989, and it has remained on Schedule I since that time,” Lara Anton of the DSHS told Reynolds.

For hemp retailers and customers, the main outcome seems to be confusion.

“It’s a huge gray area,” Rick Trojan III, a board member of the Hemp Industries Association, told Reynolds. “The whole thing is confusing for everyone involved. It sounds like DSHS doesn't even understand.”

“That’s one of the big predicaments with this whole thing,” said Hometown Hero owner Gilkey in his video response to the article. “It’s highly confusing what’s going on. There’s a lot of procedural stuff, not just issues with the way the DSHS did what they did, but also in the case and trying to move through this.”

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