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Texas Judge Blocks State’s Delta-8 THC Ban

A Texas judge has issued a temporary injunction blocking the state’s prohibition on Delta-8 THC, ruling that regulators may have acted improperly when they banned products containing the controversial cannabinoid. The ruling temporarily removes Delta-8 THC from Schedule I of the state’s list of controlled substances and allows retailers to resume selling goods containing the hemp-derived compound.

Jan Soifer (State District Court Judge) issued the temporary order Monday after Hometown Hero filed a legal challenge to the Delta-8 ban. Hometown Hero was an Austin CBD dispensary. He argued that state regulations had not been followed in issuing new rules. The Texas Department of State Health Services revealed that Delta-8 THC was a Schedule I substance according to state law. This is despite federal legalization of hemp, and the availability of hemp products in the 2018 Farm Bill.

“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 TribuneIn October

On October 15, the health department posted online that consumable hemp products containing THC in accordance with federal law were also legal. House Bill 1325 was adopted 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 noted on its website.

Hometown Hero and others challenged the ruling. They argued that the retailers were not properly notified about a hearing which led to the decision of DSHS Commissioner John Hellerstedt prohibiting Delta-8 THC. Bayou City Hemp CEO Ben Meggs and Third Coast Blends Chief Executive Officer applaud the injunction.

“This is a strong first step in reaffirming the fact that Delta-8 is a legal cannabinoid in Texas, and it would not have been possible without the efforts of Hometown Hero and Vape City’s bold, swift efforts,” Meggs wrote in an email to Chronic News. “With that said, this is a temporary injunction, and we will continue supporting Hometown Hero in this battle so there’s no confusion or gray area on Delta-8.”

Delta-8 THC products have been extremely popular since federal legalization. They are especially loved in states that still have not legalized marijuana. But the mildly psychoactive cannabinoid, which is commonly referred to as  “weed light,” is not without its detractors. There are more than 12 states that have banned the compound. Many in the legal cannabis industry want to regulate Delta-8 THC.

Stuart Tomc, vice president of business development at California CBD products company CV Sciences, says that his company “and many others within the regulated cannabis community would suggest that these unregulated products represent a major consumer safety issue.”

“Delta-8 products can be chemically synthesized in a lab with no oversight by using other phytocannabinoids, like CBD, as a starting point,” Tomc said in an email. “Many of these products that are available particularly in states where cannabis remains illegal have not been tested and could include heavy metals, pesticides, and microbes—all potential sources of contamination —leaving consumers at risk.”

Joe Bayern, CEO of cannabis multistate operator Curaleaf agreed, saying the company strongly feels “that any product containing any psychoactive cannabinoids must be regulated in the same manner as inhalable or consumed cannabis products in the adult use market” and noted that organizations including the U.S. Cannabis Council and the U.S. Hemp Roundtable hold similar positions on the substance.

“Regulating the Delta-8 compound is critical to avoid similar issues the industry saw with the vape crisis in 2019—when products from the unregulated market caused major health issues for consumers and damaged public trust for the entire industry,” Bayern wrote in an email.

However, representatives of Texas’ growing hemp industry are fighting efforts to ban Delta-8 THC, saying that consumer demand for the products has been a boon for operators throughout the state’s supply chain.

“Delta-8 isn’t made in grow rooms or on farms. It’s actually synthesized in the labs that create the CBD oil that we’re all familiar with. When those labs are able to sell more oil to the marketplace, it means they’re more prone to buy from hemp farmers in this state,” Zachary Maxwell, the president of Texas Hemp Growers, told local media.

Soifer’s temporary injunction halting the Texas Delta-8 THC ban is slated to be in place while the suit challenging the prohibition is heard by the court, allowing retailers to continue selling the products. Lukas Gilkey of Hometown Hero stated that he anticipates DSHS challenging the ruling.

“We are expecting the state to appeal this immediately,” Gilkey said in a two-minute video posted to YouTube. “But it shouldn’t change anything, and we should be able to keep proceeding going forward.”