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Texas appeals court upholds legality of delta-8 THC — for now

The latest in a legal back and forth with volleys to rival a tennis match.



An appeals court in Austin upheld a ruling Nov. 18 affirming that delta-8 THC is legal across Texas for now, reports the Houston Chronicle. Delta-8 THC is considered legal in many places through a legislative loophole that limits only delta-9 THC, the predominant and most well-known form of THC found in cannabis.

The ruling doubles down on a double negative, upholding a ban on a ban. The first ban came from the state’s health department, which announced in October that it had moved delta-8 (and all THC isomers) to the state’s list of Schedule I controlled substances.

A hemp company brought the Department of State Health Services to court over the change, saying the health department failed to properly notify the public. The company, Hometown Hero, was founded by a military veteran to offer relief from anxiety, PTSD and chronic pain among veterans.

Hometown Hero asked the court for three things:

  1. an immediate restraining order that would halt enforcement of the ban until trial

  2. a temporary injunction, offering temporary relief from the ban until the trial

  3. a permanent injunction, a permanent ban on the health department’s rule, at least in its current form


A judge dismissed the first request, confirming that delta-8 would be considered illegal. A different judge granted the second, a “ban on a ban” that allowed businesses to continue to sell delta-8 products until a permanent injunction receives consideration with a full trial. But DSHS immediately filed an appeal, in effect making delta-8 illegal again. It’s been a legal back and forth with volleys to rival a tennis match.


“The justices ruled that would help maintain the ‘status quo’ as the lawsuit unfolds so businesses don't take a sudden hit to revenue and consumers can continue using Delta 8 products as they have for years.”

— Jay R. Jordan, Houston Chronicle


The latest ruling rejects the state health department’s appeal, allowing businesses to sell delta-8, and customers to buy it legally, until a decision is made in the final trial. The Nov. 18 ruling was issued by justices in Texas' Third Court of Criminal Appeals: Melissa Goodwin, Thomas J. Baker and Edward Smith. The appellate judges confirmed a district court judge's Nov. 8 ruling to temporarily remove delta-8 THC from the state's list of controlled substances.


“The justices ruled that would help maintain the ‘status quo’ as the lawsuit unfolds,” wrote reporter Jay R. Jordan for the Chronicle, “so businesses don't take a sudden hit to revenue and consumers can continue using Delta 8 products as they have for years."


The ruling made Jay Maguire of the Texas Hemp Federation, who testified on Hometown Hero's behalf earlier this month, optimistic.


“This is further evidence that the hemp-derived cannabinoid industry is in Texas to stay,” Maguire told Jordan. “Millions of Texans use Delta 8 products for relief of pain, anxiety, inflammation and PTSD every day, and we’re here to defend their access to the relief others would deny them.”

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