Delta-8 still legal in Texas after judge blocks state criminalization attempts
On Monday, a Travis County judge granted a temporary injunction against the Department of State Health Services’ classification of delta-8 tetrahydrocannabinol as a Schedule I drug.
DSHS published a notice on Oct. 15 naming the cannabinoid a Schedule I controlled substance, a classification that is defined as “drugs with no currently accepted medical use and a high potential for abuse” by the Drug Enforcement Administration. State District Court Judge Jan Soifer’s injunction was granted because the DSHS violated the Administrative Procedures Act, according to court documents.
The past weeks’ abrupt rule changes led to a scramble in the smoke shop industry, said history senior Robert Barracca, who works as a sales associate at The Zebra’s Head, a North Texas smoke shop.
“At first, we heard the news and everyone was pretty optimistic,” Barracca said. “From our perspective, the DSHS had just updated their website and hadn’t changed any laws. But the news started talking, and we pulled [delta-8] from our shelves for a bit.”
Barracca said the uncertainty surrounding delta-8’s legality affected the smoke shop’s sales after it pulled the product.
“We had a lot of people that week come in looking for it,” Barracca said. “That week we lost a lot of customers, like we lost a good amount of money.”
After the passage of the 2018 Farm Bill and Texas House Bill 1325 in 2019, CBD stores began selling delta-8 across the state under the assumption that the legislation had legalized the sale of the substance. The Farm Bill allowed for the commercial production of hemp and authorized states to submit plans to administer hemp programs. HB 1325 allowed for the production, manufacture, retail sale and inspection of industrial hemp crops and products that do not exceed 0.3 percent delta-9 THC.
Delta-8 is one of over 100 cannabinoids produced naturally, but significant amounts of the of the substance is not found in the cannabis plant, according to the Food and Drug Administration. The state hemp law does not explicitly discuss delta-8.
“The area’s murky because if you think back to chemistry, you take out one different molecule, you are changing the substance, while it more or less will still have the same effect,” said Brian Owsley, an associate professor at UNT Dallas’s College of Law.
Owsley said the current defense being used by smoke shops is that they are not selling what the state designated as a controlled substance and are therefore not violating the law. However, “at the end of the day, if the state does not want [delta-8] to be sold, it will not be sold,” Owsley said.
“Even if [delta-8 legality] is murky now, it’s gonna be less murky soon,” Owsley said. “The commissioner, the legislature, someone’s gonna come in and say ‘this is a controlled substance and therefore it cannot be sold in the state of Texas.”
The recent injunction allows for business as usual until the issue goes to trial in January 2022. Despite the reprieve, the proceedings around delta-8 have left some smoke shop patrons like art and design senior Alexa Conrad in an odd position.
“So at first, when I tried it I don’t think I was a fan,” Conrad said. “Then over time […] I felt way more productive and I liked delta-8. I was sad when I heard about the ban and honestly, I haven’t been in the shop since.”
Eighteen states have legalized recreational marijuana usage as of October, according to U.S. News. A 2019 Gallup poll showed that 66 percent of Americans are in favor of marijuana legalization, up from just 12 percent 50 years before in 1969.
Featured Image: A person walks by The Zebra’s Head, a shop adjacent to campus, on Nov. 3, 2021. Photo by Meredith Holser
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