Businesses in Limbo as Legality of Delta-8 Ban is Sorted Out

Lawsuits have been filed, challenging the legality of a ban on Delta-8

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The debate over Delta-8 THC continues.

A judge ended a much-anticipated court hearing Friday without making a decision on a temporary injunction requested by attorneys for Hometown Hero, an Austin-based company suing the state over the legality of a ban on Delta-8 THC in Texas.

"Texas is becoming ground zero for a fight that is essentially going to spread across the country," said Hometown Hero founder Lukas Gilkey.

If the injunction is granted, it would effectively allow the sale of Delta-8 products to resume while the lawsuit plays out in the courts.

"I will make a decision as quickly as I can," said Travis County Judge Jan Soifer.

In court Friday, attorneys for Hometown Hero argued the Texas Department of State Health Services failed to follow proper procedure in notifying the public when it added Delta-8 THC to the Texas controlled substances list last year.

Attorneys for DSHS said the department did nothing wrong.

A decision by Judge Soifer is expected early next week.

As the legality of Delta-8 THC is sorted out in courts, some Texas businesses continue selling products containing it.

As the legality of Delta-8 THC is sorted out, some Texas businesses have pulled products containing it from shelves.

But some continue selling them.

Since opening its doors five months ago, ENDO Dispensary in Rowlett has been busy.

But sales, Mike Brown says, have doubled since last month when other stores started pulling Delta-8 THC products off shelves.

“We're getting people as far as 60 miles out simply looking for the product simply because we're not going to pull it until there is an actual law that says we have to,” Brown said.

The 2018 federal Farm bill legalized hemp nationwide. It became legal in Texas in 2019 with the passage of House Bill 1325, which created a Consumable Hemp Program, among other things.

Both the state and federal definitions of hemp allow for .3% or less Delta-9 THC.

Texas law does not mention Delta-8 THC which many describe as a milder form of Delta-9 THC, the main compound in cannabis that gets users “high”.

The confusion began October 15, when the Texas Department of State Health Services posted a notice online declaring "Delta-8 in any concentration" is illegal.

The announcement surprised retailers and consumers who’ve been selling and buying products with Delta-8 THC for months.

“You're federally compliant and all the sudden you're told you can't and you have people calling you panicking on the phone crying, coming in here, in hysteria honestly because they found something that works for them," Brown said.

Delta-8 THC is derived from hemp, which like marijuana, is a variety of cannabis plants.

Since becoming legal, there’s been an explosion of hemp products ranging from CBD oil to consumables containing Delta-8.

“Our contention is that these products are largely used as a wellness product anyway and not intended to get people stoned,” said Jay MaGuire, executive director of the Texas Hemp Federation.

At least two Texas companies are now suing the state over the ban.

Both were denied temporary restraining orders by judges.

Thursday, the companies, Hometown Hero and Vape City, announced they’re consolidating cases and plan to be back in court Friday morning for a temporary injunction motion.

In a statement, the DSHS pointed out Delta-8 is listed as a controlled substance by the Drug Enforcement Agency.

It said even though Delta-8 is not named in state law, THC has been illegal in Texas for decades.

The DSHS said it posted that clarification online last month at the request of hemp growers who said there was confusion in the industry.

Mike Brown with Endo Dispensary believes the company is compliant and says he would've never started a business that was illegal.

Like some other businesses across the state, he said he intends to keep selling Delta-8 products until questions about their legality are answered.

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