Inside Texas' Delta-8 Ban: Retailers are Fighting Back

Texas companies are fighting back against the state’s recent ban on delta-8 THC.

The ban stems back to a statement made by Texas Department of State Health Services (DSHS) in late October clarifying that delta-8 is a Schedule I controlled substance and is illegal under H.B.1325 signed into law by Gov. Gregg Abbott in 2019 to legalize the cultivation of hemp in Texas, Hemp Grower previously reported

DSHS’ statement reads: “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). All other forms of THC, including Delta-8 in any concentration and Delta-9 exceeding 0.3%, are considered Schedule I controlled substances.”

Companies have since filed lawsuits in attempt to reverse that ban, and they succeeded temporarily. But the state and attorney general have worked to reverse that, leaving the parties to work out the issue through lawsuits currently moving through courts.

The state’s tumultuous and somewhat history with delta-8 is one that started even before the DSHS stepped in.

© Courtesy of Vicente Sederberg websitePennington

The Debate Over Delta-8’s Legality in Texas

Since H.B. 1325 does not address delta-8 specifically, many retailers and manufacturers assumed the substance was legal and continued selling such products until DSHS released its statement.

Shane Pennington, who serves as counsel at Vicente Sederberg LLP, a national cannabis law firm, says it’s unclear whether delta-8 wasn’t already illegal in Texas before DSHS released its statement for a “number of reasons.”

He says he’s heard of law enforcement arresting citizens for possession of delta-8 because of the Texas Health and Safety Code 481.103(1). Pennington says the measure includes synthetics, derivatives, extracts, isomers and more, and also includes a “such as” section, where it lists “delta-6 cis or trans tetrahydrocannabinol and their optical isomers.”

“That’s a bunch of organic chemistry that I can’t claim to be an expert in, but I do know that back in the day, delta-6 [trans] was another term or another way of saying that the chemical name of delta-8,” he says. “So, that I think is significant because, like I said, these other arrests have been under that” and not because of the DSHS’s new statement, Pennington says.

However, Jay Maguire, executive director at the Texas Hemp Federation, disagrees and says the statements surrounding Texas’ delta-8 ban are “asinine.”

“The notion that delta-8 has always been illegal is simply a lie,” Maguire says. “Hemp has been legal in Texas for the first time only since 2019. DSHS has made statements in public like delta-8 has been illegal for 40 years. They’re conflating two different kinds of delta-8. What they’re referring to there is marijuana-derived delta-8, not hemp-derived delta-8.” 

While delta-8’s legality in Texas before DSHS’s statement is in question, Shawn Hauser, partner and co-chair in the Hemp and Department at law firm Vicente Sederberg, says she thinks DSHS released the statement in response to just that: industry confusion.

© Courtesy of HauserHauser

“The notice [from the] Department of State Health Services I think was really responding to stated confusion in the

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