Judge Blocks Ban on Delta-8 THC, Allowing Product Back on Shelves for Now

A Texas district judge ruled on Monday in favor of removing Delta-8 THC from the state’s list of controlled substances until the court determines whether the state followed the law when it ruled the hemp-derived products illegal.

The decision brought a temporary victory for sellers and users of Delta-8 in Texas.

The ruling by Travis County’s 126th District Judge Jan Soifer granted a temporary injunction against the Texas Department of State Health Services and DSHS Commissioner John Hellerstedt.

Austin-based company Hometown Hero is among the plaintiffs suing the state over the legality of a ban on Delta-8 THC.

It comes after DSHS posted a notice online declaring the product, which is derived from hemp, illegal in Texas.

The notice created confusion among those who have used and sold Delta-8 products for months.

Both state and federal definitions of hemp allow for 0.3% or less of Delta 9 THC.

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

Soifer ruled the plaintiff, "asserted a valid cause of action" against DSHS under the Administrative Procedures Act for DSHS’ changes to its website, including amendments to the definitions for the terms "tetrahydrocannabinol" and “Marihuana extract” as reflected in the 2021 Department of State Health Services’ Schedule of Controlled Substances.

The judge found DSHS’s rule concerning Delta-8 failed to comply with rule-making requirements found in the APA.

As a result of Hellerstedt’s actions and DSHS’ violations, the plaintiffs "will suffer imminent and irreparable harm’ including brand erosion, loss of customers’ goodwill, employee force reduction and revenue loss," the judge wrote.

“I think it’s a huge victory, especially for people who use this for medicinal purposes,” said Mike Brown, owner of ENDO Dispensary in Rowlett.

Sales at the shop doubled last month after other stores started pulling the products from shelves.

Brown said business has boomed.

“Had to lock the door just so I could do this Zoom call,” he said. “People out the door. Very good for business. A lot of them are coming in here with tears in their eyes grateful that they can still have access to what’s working for them that they thought they were going to lose.”

Customers have been unaware of Monday’s ruling, he said.

Brown vowed to keep selling Delta-8 until the law is cleared up in Texas.

“We now have compliant Delta-9 THC, by their law,” he said. “When they push, we evolve. I don’t want to say we fight back, but the harder you push endo brands, the harder we’re going to push back.”

In a YouTube video, Hometown Hero founder Lukas Gilkey said he expected the state to immediately appeal Monday’s ruling.

The judge ruled the temporary injunction would be in place until the issue goes to trial, which could be in January 2022.