Whoa partner! A State Agency Quietly Banned Delta-8 in the Lone Star State

Editor’s note: Since this blog article was published a group of hemp advocates in Texas filed a lawsuit against the Texas Department of State Health Service (DSHS). The District Court in Travis County, Texas issued a temporary injunction in that case. Click here to read more. -November 8, 2021.

A recent (and unannounced) change to the Texas Department of State Health Services (DSHS) website indicates the following change regarding Delta-8 in Texas:

“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). All other forms of THC, including Delta-8 in any concentration and Delta-9 exceeding 0.3%, are considered Schedule I controlled substances. A list of Schedule I controlled substances can be found at the following link: Schedule I Controlled Substances.” (Emphasis added).

The bottom of the webpage states it was updated on October 15, 2021.  This dramatic action was not announced formally by DSHS and would have only been noticed by someone that routinely check for updates to state hemp programs.

What is interesting about the DSHS’ statement regarding Delta-8 is that it follows a popular trend among states regarding Delta-8: state agency prohibition against certain cannabinoids that appear damning, despite the fact they might not carry the force of law. Other states across the country, including Iowa, Kentucky, Massachusetts, North Carolina, South Carolina, and Vermont, to name a few, have, through various agencies, enacted similar prohibitions.

However, while other states across the country are attempting to chill the fervor of Delta-8 via agency or administrative actions, what makes Texas’ prohibition unique is that it appears to be the result of deliberate action taken over a period of time to amend Texas’ list of controlled substances to be different than the federal list of controlled substances. Importantly, this agency amendment followed the Texas legislature’s inability to pass a bill that would have banned Delta-8 THC during its most recent legislative session.

As many readers of this blog know, the passage of the 2018 Farm Bill resulted in the amendment to the federal list of controlled substances, including the definition of “tetrahydrocannabinols”. This updated definition removed “THC in hemp” from the list of controlled substances.

Texas, like many other states across the country, maintains its own list of controlled substances. However, unlike other states across the country, Texas rejected the amendment to the federal controlled substances list. Information obtained from the Texas Hemp Growers Association points to the fact that a hearing was held on this rejection on October 6, 2020. A spokesperson from DSHS confirmed the fact that nobody spoke during the meeting and no written comments were received regarding its rejection of the federal changes, and more importantly, the adoption of a strict definition of THC and THC extract which effectively banned delta-8 and other isomers.

Due to a provision in Texas’ Health and Safety Code (HSC), the DSHS has the authority to reject the federal changes, and crucially, the HSC gives the DSHS the authority to change the list of controlled substances in Texas. Accordingly, and in addition to the statement referenced at the beginning of this post, the DSHS provided the following statement regarding Delta-8:

“Sale and possession of these products currently constitutes a criminal offense in Texas. Complaints should be referred to local law enforcement agencies or, if those agencies do not wish to pursue, to DPS. DSHS has no regulatory authority over hemp products other than those that meet the definition of “Consumable Hemp Product” in HSC 443.001(1).”

Recent arrests in Texas regarding the possession of Delta-8 indicate the DSHS’ directives are being taken seriously. As such, persons who are in possession of Delta-8 products in Texas, manufacturers of Delta-8 products, and retailers of Delta-8 products are all at risk of criminal prosecution for their activities.

If you need to discuss delta-8 THC, or any other hemp matter, please do not hesitate to contact the lawyers at Kight Law. 

October 20, 2021

This article was written by Kight Law attorney Philip Snow. Kight Law represents hemp businesses in the US and throughout the world. To schedule a consultation with Philip, please click here and mention this article.