Recently and somewhat abruptly, the Texas Department of State Health Services (DSHS) declared Delta-8 THC a Schedule I controlled substance and made it illegal under Texas law, according to a statement DSHS added to their website.
“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 statement reads. “All other forms of THC, including Delta-8 in any concentration and Delta-9 exceeding 0.3%, are considered Schedule I controlled substances.”
Before issuing this statement, Texas businesses sold products containing Delta-8. In 2019, Governor Gregg Abbott signed H.B. 1325 into law, legalizing hemp cultivation containing less than 0.3% Delta-9 THC. The bill made no specific mention of Delta-8 THC, leaving many retailers and manufacturers to presume it was legal.
Chemically speaking, Delta-8 and Delta-9 THC are nearly identical. Delta-9 has a stronger psychotropic effect, but Delta-8 is less common in nature – only traces are found in the marijuana plant. Delta-8 can be chemically derived from the CBD in hemp. Here’s where the controversy emerges.
The 2018 U.S. Farm Bill legalized the production of hemp and its derivatives. Thus, some argue that Delta-8 THC, which is derived chemically from hemp-based CBD, is legal. But federal law bans synthetic THC, although the definition of “synthetic” isn’t clear. The Drug Enforcement Agency drafted hemp rules under the farm bill and tends toward the “Delta-8 is synthetic, and therefore banned” side of the argument. But you can probably see why the situation has sent everyone into a spiral.
Sky Marketing Corp. (which actually conducts business under the name “Hometown Hero”) filed a lawsuit arguing that low-THC hemp products are legal under both state and federal law. The case aims to block the Texas Department of State Health Services from taking “enforcement action” against the sale of low-THC hemp products.
The concern is that the ban on Delta-8 will be detrimental to the Texas hemp industry. The lawsuit also points out that several bills seeking to ban Delta-8 have failed to pass the Legislature. Finally, the lawsuit contends that DSHS Commissioner John Hellerstedt did not follow proper procedure on the rule change.
“The statement was added to the DSHS website to clarify for consumable hemp product licensees and retail sellers that Delta-8 and all other forms of THC are still on the list of Schedule I controlled substances,” the DSHS said in a statement to the Dallas Observer.
It is unclear how the department plans to enforce the rule. Delta-8 THC remains a much-debated and controversial cannabis topic in many states.