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Texas hemp companies file for restraining order against state over Delta 8 legality
An Austin hemp manufacturer and retailer asked a judge Wednesday to temporarily suspend the Texas Department of State Health Services classification of Delta 8 THC as a controlled substance, the first legal step taken since the department quietly announced the change last week.
Delta 8 THC is a cousin of marijuana's active ingredient and is sold over the counter across the state. Up until last week, retailers and manufacturers worked under the assumption that Delta 8 THC products were legal to sell and possess under Texas law after the federal Farm Bill of 2018 and subsequent changes to Texas law legalized certain hemp products, according to attorneys for Austin-based Hometown Hero CBD. But a sudden change to DSHS's website on the state's Consumable Hemp Program detailing Delta 8's controlled substance designation left the industry in a lurch.
"These recent developments have caught companies that sell hemp-derived products as well as their consumers off guard, immediately turning them into potential felons subject to arrest despite years of engaging in this same business without issue or law enforcement interference, and without having any knowledge of or intention to violate the law," attorney David Sergi wrote in the petition provided by the Texas Hemp Federation.
Attorneys claim DSHS and Commissioner John Hellerstedt didn't have the authority to change the list of controlled substances, despite the department claiming otherwise. In August 2020, the U.S. Drug Enforcement Agency updated its list of controlled substances to reflect the changes made by the Farm Bill, paving the way for other types of THC to be legal under the new hemp law — including Delta 8 THC.
Any time the DEA "designates, reschedules, or deletes" any part of the federal controlled substances, individual states are allowed to choose whether or not to adopt the changes or stick with their existing rules. In Texas, that decision is solely up to Hellerstedt. However, attorneys argue that the changes implemented by the DEA in 2019 were merely "conforming" the list to the new federal law rather than taking action that "designates, reschedules, or deletes" anything.
That means, according to the attorneys, that DSHS had no legal authority to object to the changes. State law already mirrored the Farm Bill's language on hemp-derived products, but the state's controlled substance list reflected otherwise because of the department's decision. A public notice for the hearing to decide the change was posted online in September 2020 titled "Objection to Implementing DEA Rule Changes," but it provided no further context. No one showed up to the public hearing in question, and no one wrote in any comments.
Then, when publishing their ruling in Texas' official record March 19, they used screen grabs of a document rather than the text itself, records show and attorneys argue. Typically, attorneys and those in the industry use web services to comb through expansive documents published online by the government to find relevant information based on specific keywords. But those programs don't work on pictures of text, only the text itself — meaning no one in the industry knew that the rules had been changed.
In Houston, some shops stopped selling Delta 8 products upon learning of the questionable legality earlier this week. The Texas Department of Public Safety did not respond to questions about any plans to enforce the law, including what shop owners are to do with Delta 8 products they've amassed. In Harris County, a spokesperson for the District Attorney Kim Ogg said any arrest for Delta 8 possession brought by by law enforcement will treated on a case-by-case basis. In College Station, one person is already facing charges.
Stores across Houston are struggling to figure out if they need to stop selling Delta 8 products. On Richmond, CBD ZAR has this posted on its door and in store. Other smoke shops down the street are still selling Delta 8 products, however
Bayou City Hemp, which manufactures and sells CBD and Delta 8 products to customers and retailers, helped finance Hometown Hero CBD's legal effort to fight the so-called ban on Delta 8 products.
"Prohibition is very tough," Bayou City Hemp CEO Ben Meggs said. "We don't think that's the right direction."
Meggs said the timing of DSHS' announcement is questionable. Crop growers typically harvest this time of year, but could be unable to sell any products if bulk buyers and manufacturers are skeptical of the plant's legality. It follows the same timing pattern of 2019's smokeable hemp ban, which also hurt the industry that season, according to Meggs.
But despite the ban in 2019, industry leaders fought back and eventually got the new law overturned, according to Hemp Industry Daily. Meggs said they're hoping for similar results regarding Delta 8's legality.
"Here we are again," Meggs said. "We're going to go through another round of issues on a slightly different case but within the same field."
From here, a judge will decide whether or not to grant the temporary restraining order, which will last 14 days if approved. During that time period, attorneys will be exploring additional legal remedies, according to Jay Maguire of the Texas Hemp Federation