The key to the legal issue of whether delta-8 THC, and other THC isomers, are legal in Texas has long been regarded as resting with the state Supreme Court. Well now, it appears official: the Texas Department of State Health Services has submitted its first formal brief to the state Supreme Court and, surprise, surprise… intoxicating hemp products were not legal in Texas.
This is happening as Texas revamps its hemp laws, and federal lawmakers work on reauthorising the Farm Bill, which might prohibit intoxicating THC products.
The roots of this problem are in 2018 when the Farm Bill was revised so that cannabis plants with less than 0.3 percent delta-9 THC – the compound responsible for most of marijuana’s intoxicating effects – could be classified as legal hemp. Anything with more than 0.3 percent delta-9 THC was considered illegal marijuana. Delta-8 is generally considered less potent than delta-9 Among various types of THC, delta-8 is most often regarded as the gentlest. A DSHS spokesperson declined to comment on the ongoing case but said that the agency’s legal brief ‘speaks for itself’.
Two years after the Farm Bill’s passage, the US Drug Enforcement Administration (DEA) delisted hemp from its own list of controlled substances. Under Texas’s laws, when the federal government changes its list of controlled substances, the state has a choice of whether or not to follow. In a lawsuit against DSHS, lawyers for the hemp company Hometown Hero argue that the DEA didn’t reclassify a controlled substance: it simply updated its list to match the 2018 Farm Bill. As such, they argued, it wasn’t required to adjust its own list of controlled substances.
Hometown Hero claims in its lawsuit that DSHS failed to adequately notify the public about changes being made banning delta-8 and other THC isomers. The agency did post a notice about a hearing, but it had a vague title that wasn’t included in a searchable PDF document – unlike notices for similar hearings DSHS posted earlier this year. DSHS says the title and date of the notice were in the document, but only if you used the magnifying glass to scroll through the PDF. According to Hometown Hero, had the notice been searchable, the company would have been aware of and would have attended the hearing to make its case. Because nobody knew about it, the ban went through without objection.
Texas had already added THC isomers such as delta-8 to its definition of marijuana extract, essentially making them illegal. In early 2022, the DSHS went a step further, declaring delta-8 a Schedule I controlled substance and thereby outlawing it, too. Hometown Hero sued, and the court issued a temporary stay in the case. The state appealed the ruling, but lost in the third district court of appeals.
Now, DSHS has asked the Texas Supreme Court to review the district court’s decision. Its brief in the case was filed on 21 August, and Hometown Hero has until 10 September to answer it. Daryoush Austin Zamhariri, editor of the Texas Cannabis Collective cannabis news site and Fort Worth-based non-profit, said he’s uncertain what will happen.
‘No one can say for sure,’ he said. ‘That the state is still pushing this case to court proves their intentions for rolling back the cannabinoid market they helped create five years ago.
Zamhariri also noted that the last time a cannabis issue was before the Texas Supreme Court, the state attempted to ban all smokable hemp products. That case only banned the manufacturing of smokable products in Texas, but it is instructive for the present one.
Jesse Williams, the managing editor of the Texas Cannabbis Collective, points out that, according to DSHS, ‘this shouldn’t have even seen its way into a courtroom’. Williams disagrees.
The role of the judiciary is to resolve cases like this, where there is some question of whether an agency was empowered by law or by the state constitution to take a particular action,’ Williams said. DSHS appears to believe it was right all along, and that the case should have been dismissed before it reached the courts.
Williams fears that DSHS is trying to establish precedent that would allow it to set hemp policy without seeking changes in the law, which she believes could set a dangerous precedent for hemp’s future in Texas.
What this means for the rest of us, only time will tell …
For now, quality suppliers can still be found online – often focusing on CBD but also selling THC gummies. One of our first posts ever briefly touches on the “why” which can be summarized as the “2018 Farm Bill”.
- Is it really legal to order THC online?
Well..? The surprising answer is: YES!!! There are limits of course but let us explain the goof that happened allowing you to take advantage of it while it’s still in place.… Read More »Is it really legal to order THC online?
