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“The notice Department of State Health Services I think was really responding to stated confusion in the industry, and I think amongst enforcement regulators in the state as to the legal status of delta-8, because there has been an increasing demand in the market, particularly in states where there are not robust regulated cannabis programs,” Hauser says. While delta-8’s legality in Texas before DSHS’s statement is in question, Shawn Hauser, partner and co-chair in the Hemp and Cannabinoids Department at law firm Vicente Sederberg, says she thinks DSHS released the statement in response to just that: industry confusion. What they’re referring to there is marijuana-derived delta-8, not hemp-derived delta-8.” They’re conflating two different kinds of delta-8. DSHS has made statements in public like delta-8 has been illegal for 40 years.
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“Hemp has been legal in Texas for the first time only since 2019. “The notion that delta-8 has always been illegal is simply a lie,” Maguire says.
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However, Jay Maguire, executive director at the Texas Hemp Federation, disagrees and says the statements surrounding Texas’ delta-8 ban are “asinine.” “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. “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 was another term or another way of saying that the chemical name of delta-8,” he says. 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.”
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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). 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.” 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. The Debate Over Delta-8’s Legality in Texas © Courtesy of Vicente Sederberg website Pennington The state’s tumultuous and somewhat history with delta-8 is one that started even before the DSHS stepped in. 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.
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All other forms of THC, including Delta-8 in any concentration and Delta-9 exceeding 0.3%, are considered Schedule I controlled substances.”Ĭompanies have since filed lawsuits in attempt to reverse that ban, and they succeeded temporarily. Gregg Abbott in 2019 to legalize the cultivation of hemp in Texas, Hemp Grower previously reported.ĭSHS’ 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). 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-legislation signed into law by Gov. Texas hemp companies are fighting back against the state’s recent ban on delta-8 THC.