Texas hemp companies are vowing fight against a state ruling last week that declared that delta-8 THC was a Schedule I controlled substance. Texas Department of State Health Services’ (DSHS) regulators noted that even though hemp products and extracts containing less delta-9 THC than 0.3 percent were made legal under the 2018 Farm Bill 2018, the state still controls the cannabinoid.

“DSHS posted the clarification below on our website in response to recent requests from hemp growers who said that there was confusion in the industry about what was allowed in consumable hemp products,” Lara Anton, a spokesperson for the agency told the Texas Tribune

Online, the agency stated that all consumable hemp products containing THC in accordance with federal law were also allowed under House Bill 1325. This was passed in 2019 by Texas lawmakers to regulate Texas’ hemp industry. However, “All other forms of THC, including Delta-8 in any concentration and Delta-9 exceeding 0.3 percent, are considered Schedule I controlled substances,” the DSHS wrote on its website.

Delta-8 THC Ban Catches Retailers Off Guard

This announcement has surprised many businesses that sell or manufacture hemp-derived products. Ashley Flood is the proprietor of a CBD American Shaman franchise located in Allen, Texas. She claims that they weren’t properly notified about the ban on delta-8 THC. Officials claim the announcement was made by John Hellerstedt, DSHS Commissioner.

“We didn’t find out from the state; we didn’t find out from law enforcement; we didn’t find out via letter, email—nothing We found out from one of our suppliers,” Flood said after finding out about the change to the DSHS website.

Ben Meggs, the CEO and cofounder of Houston-based Bayou City Hemp Company, says that the DSHS has exceeded its authority and “failed to abide by state law by banning delta-8 THC products, noting that state lawmakers declined to do so when they had the chance.

“The Texas legislature had an opportunity to pass laws that would have likely banned delta-8 THC and would have provided for less ambiguity, but lacked bipartisan support to get this passed, so it is confusing for consumers and businesses to understand the how the current legal status could have changed,” Meggs wrote in an email to Chronic News.

“It is our belief that a blank statement surrounding the legal status of delta-8 is not only inaccurate, but irresponsible and short-sighted,” Meggs added. “Not only does DSHS interpretation completely contradict both the Federal Farm Bill and HB1325, we all know that outright bans to anything only further drive the industry underground with less oversight, and we lose the ability to pass fair and balanced regulations.”

CBD Company Suits to Ban

Sky Marketing Corp. is a hemp product operator and Hometown Hero’s CBD retailer. They are now taking legal action against the Texas ban on Delta-8 THC. In a suit filed in state district court, Sky Marketing asked for a temporary restraining order blocking the DSHS from taking any “enforcement action” against companies selling low-THC hemp products. 

In a court filing, the company claimed that officials failed to give notice of the rule and that it would cause financial hardships for businesses that sell delta-8 THC products.

“After operating legally and consistent with Texas law for several years, Plaintiff and other similarly situated businesses and individuals now find themselves in potentially legal jeopardy, and their businesses and livelihood with an uncertain future,” the lawsuit states.

Sky Marketing failed to stop the DSHS from enforcing its ban. In his ruling denying the action released on Friday, Judge Gary D. Harger of the 126th Judicial District in Travis County wrote that the plaintiff had “not met the requirements of a temporary restraining order.”

Meggs, whose company was not involved in the legal action, said that he was “surprised” by the judge’s ruling and vowed to file a new suit “so we can protect the rights and safety of Texans.” He added that regulating the hemp industry, including firms offering delta-8 THC products, will protect the consumers and allow legitimate companies to operate openly and transparently.

“The true concern I have with this decision are the effects it has on farmers, businesses and consumers whose livelihood and well-being depend on it,” Meggs said. “Prohibition doesn’t work; we know that. Banning delta-8 creates a black market with less checks and balances in which the cannabinoid will still be sold underground by bad parties in the industry.”