Texas Judge Bars State from Listing Delta-8 THC as a Schedule I Drug
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Texas Judge Bars State from Listing Delta-8 THC as a Schedule I Drug

The cannabis compound is legal in Texas again under the temporary injunction.

November 9, 2021

A Texas judge has barred the state from listing delta-8 THC as a Schedule I drug, meaning that the cannabis compound is legal in Texas again under the temporary injunction.

Last month, the Texas Department of State Health Services (DSHS) added a statement to its website declaring delta-8 illegal under state law.

“Texas Health and Safety Code Chapter 443 (HSC 443), established by House Bill 1325 (86th Legislature), allows Consumable Hemp Products in Texas that do not exceed 0.3% Delta-9 tetrahydrocannabinol (THC),” the website reads. “All other forms of THC, including Delta-8 in any concentration and Delta-9 exceeding 0.3%, are considered Schedule I controlled substances.”

Until last month, businesses have sold products containing delta-8 THC under what they perceived as a grey area of H.B. 1325, which Gov. Greg Abbott signed into law in 2019 to legalize the cultivation of hemp that contains less than 0.3% delta-9 THC. Since the law did not specifically address delta-8, manufacturers ramped up the production of delta-8 products under the assumption that they were legal, until the DSHS clarified its stance that delta-8 is a Schedule I controlled substance.

Austin-based Sky Marketing Corp., which does business as Hometown Hero, filed a lawsuit in Travis County district court shortly after DSHS released its statement on delta-8 THC, seeking to block the department from taking “enforcement action” against the sale of products containing the compound, which the store owner argues are legal under both federal and state law.

On Oct. 22, State District Judge Gary Harger denied the plaintiff’s request for a temporary restraining order to block DSHS’ delta-8 ban, but on Nov. 8, State District Judge Jan Soifer granted a temporary injunction against the state, according to The Texas Tribune.

The temporary injunction says DSHS did not comply with Texas’ rulemaking requirements when it issued its statement on delta-8 THC, the news outlet reported. The order blocks the state from classifying the selling or obtaining of delta-8 THC as a felony offense.

The state is expected to appeal the ruling, according to The Texas Tribune. DSHS claims that it gave adequate notice of delta-8’s legal status through a notice in the Texas Register, a public hearing and a state official providing legal testimony in May, the news outlet reported.

Michelle Donovan, an attorney for Vape City, a CBD retailer that has filed a separate lawsuit against the state over its delta-8 ban, told The Texas Tribune that while the latest court order temporarily legalizes delta-8 products again in Texas, “there is a long road ahead” to fight a larger legal battle.