Texas Department of State Health Services takes delta-8 out of the legal gray zone, saying it’s illegal.
Texas has taken a stand on delta-8 THC: It’s not legal.
Delta-8 had been the subject of brisk commerce in the state, with retailers and customers doing business under the assumption that the hemp-derived substance was legal under the 2018 federal Farm Bill. That bill, alongside legislation in many states, had specified that only substances with a concentration higher than 0.3% delta-9 THC would be illegal.
But the Texas Department of State Health Services closed the loophole October 15, reports the Dallas Morning News. That day, the agency updated its list of controlled substances and posted an announcement on its website: “[…] THC, including Delta-8 in any concentration and Delta-9 exceeding 0.3%, are considered Schedule I controlled substances.”
“THC, including Delta-8 in any concentration and Delta-9 exceeding 0.3%, are considered Schedule I controlled substances.”
— Texas Department of State Health Services
Business Owners Voice Surprise — And Some Objections.
It’s not an entirely popular position, as documented by the local ABC affiliate, KTRK Channel 13.
"It's going to be a surprise to a lot of people," Colin Valencia, owner of the Oil Well dispensary in Houston, told ABC13. "It was a prime seller and a prime interest of customers, and they really enjoyed the benefits of it.”
"We've heard of vets with PTSD who use these products for things like anxiety, dealing with stress and emotions. There's also people who use these products for sleep regulation," Zachary Maxwell of Texas Hemp Growers told the station.
Maxwell added that the Texas Hemp Growers’ estimate of the state’s delta-8 market was $50 million annually.
Some businesses plan to fight the change, according to the Dallas Observer. Vince Sanders, founder and owner of American CBD Shaman, plans to send an objection to the attorney general, health department and local law enforcement.
“We don’t believe that DSHS has the authority to ban isomers or derivatives of hemp and other cannabinoids because it’s clear they’re legal in both Texas and at a federal level, so long as they came from hemp and there’s proof they came from hemp,” Sanders told the Observer.
Illegal Since January?
According to the Dallas Morning News, the Texas commissioner of health had issued a formal objection to federal drug schedules omitting any psychoactive variants of THC. The official notice was published in January but the public remained largely unaware of it. And a broad list of THC isomers was not named on the state’s list of controlled substances until October 15.
"A lot of the industry has been operating under the assumption that Delta 8 is legal or that it exists inside of this gray area, and unfortunately, as we are learning, this is not the case. These products have in fact been illegal since the beginning of this year," Maxwell of the Texas Hemp Growers told ABC13. "And if you're caught with as much as a Delta 8 vape cartridge or even a package of gummies, you could be looking at a felony offense punishable up to two years in prison and a fine up as much as $10,000.”
“If you're caught with as much as a Delta 8 vape cartridge or even a package of gummies, you could be looking at a felony offense punishable up to two years in prison and a fine up as much as $10,000.”
— Zachary Maxwell, Texas Hemp Growers
Will It Be Enforced?
Staff at the Texas DSHS told ABC13 that Friday’s announcement was prompted by a request from the hemp industry for clarification on the legality of delta-8. Whether the rule will be enforced remains in question.
The DSHS website says the agency has “no regulatory authority over controlled substances,” and directing complaints regarding controlled substances to law enforcement.
However, a woman was arrested October 2 in Brazos County for possession of delta-8 THC. And according to the Dallas Morning News, at least six people in the state have been charged with a felony in association with delta-8 possession in the last three months.