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Texas ban on delta-8 THC is on hold — for now



Texas hemp companies can again make and sell products containing delta-8 THC. For now, at least, a judge’s ruling has paused enforcement of a delta-8 ban put in place by the state’s health department.


Travis County Judge Jan Soifer on November 8 granted a temporary injunction allowing sales of delta-8 products to continue until the connected lawsuit goes to trial in January.


The injunction was requested by Hometown Hero, an Austin-based hemp manufacturer and retailer operating under the assumption that delta-8 was legal until the Texas Department of State Health Services announced in mid October that it had listed delta-8 as a controlled substance. The delta-8 variant of THC is considered legal in many places through a legislative loophole that limits only delta-9 THC, the predominant form of naturally-occurring THC.


In the legal filing, Hometown Hero said the health department failed to properly notify the public of changes to policy on delta-8 THC. The company also said the health department commissioner had acted beyond his authority in changing the definitions for “tetrahydrocannabinols” and “Marihuana extract” in the state’s Schedule of Controlled Substances.


The judge ruled those claims were valid.


Judge Soifer wrote that the plaintiffs had demonstrated “a probable right to declaratory and injunctive relief” because the rules were changed with little public awareness, and the changes made were beyond the scope of the health commissioner’s authority.


Because of those factors, Hometown Hero’s reputation and bottom line were at stake. The judge also noted that the sudden change of rules put employees and customers at risk of arrest.


“Plaintiffs will suffer imminent and irreparable harm,” Soifer wrote, “such as brand erosion, reputational damage, including loss of customers’ goodwill, unsalvageable loss of nationwide customers, loss of market share, loss of marketing techniques, employee force reduction, revenue lost and costs incurred [...] and subjecting all of Plaintiffs’ employees and similarly situated company employees and individual consumers to potential arrest and other criminal penalties.”


“Plaintiffs will suffer imminent and irreparable harm such as brand erosion, reputational damage, including loss of customers’ goodwill, unsalvageable loss of nationwide customers, loss of market share, loss of marketing techniques, employee force reduction, revenue lost and costs incurred by not being able to manufacture, process, distribute, or sell hemp products that fall within the newly adopted definitions for “tetrahydrocannabinol” and/or “Marihuana extract,” having to relocate or shut down part of Plaintiffs’ businesses and contributing to the insolvency of Plaintiffs’ vendors and customers, and subjecting all of Plaintiffs’ employees and similarly situated company employees and individual consumers to potential arrest and other criminal penalties.”

— Travis County Judge Jan Soifer


Judge Soifer added that customers who have come to rely on delta-8 THC for anxiety,

depression, insomnia, migraines, loss of appetite, chronic pain, and nausea “may be forced to seek other dangerous alternatives, like opioids or street drugs.”


Hometown Hero owner and founder Lukas Gilkey announced news of the injunction with enthusiasm.


“We got the injunction. We are good to go,” he said in a video to others in the Texas hemp industry. “You are free to sell delta-8 in Texas as of right now.”


Hometown Hero’s earlier request for a temporary restraining order, which would have paused enforcement the ban immediately after the suit was filed, was denied October 22 by a different judge. In that ruling, Judge Gary Harger wrote that the plaintiff’s petition hadn’t met the requirements of a temporary restraining order.


A final trial on the case is set for January 28, 2022.


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