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CBD companies file lawsuit over legal changes for Delta-8 THC

by Adam Bennett 10/22/21

A legal battle is underway in Texas over Delta-8, a cannabis extract that was legal until the state health department quietly reclassified it as a controlled substance.

Hometown Hero, an Austin company that sells Delta-8 and CBD products, sued Texas Department of State Health Services and its commissioner on October 22 to reverse the classification.

"We had enough Delta-8 product, Delta 10, Delta O product in the store to put me away for 99 years,” said Chris Powers, owner of Hydroshack Hydroponics in Houston Heights.

Delta-8 THC, a compound that comes from hemp, was believed to be legal in Texas after the federal 2018 farm bill and a 2019 state law, House Bill 1325, legalized hemp products.

However, on October 15, the Texas Department of State Health Services updated its website to say Delta-8 is considered a Schedule I controlled substance.

"There was no formal notification,” said Powers. “I actually called a few other stores like ours and said, 'Hey, you know, is this real?"

Powers says about 25 percent of sales at his store, which also sells CBD and gardening products, comes from Delta-8.

He says he and his employees will survive the financial loss, but other stores more dependent on Delta-8 sales will suffer worse.

A DSHS spokesperson emailed this statement to KHOU:

On the DEA’s current list of Controlled Substances, Delta-8 is specifically named as one of the Tetrahydrocannabinols on Schedule I. DSHS has not made any changes to the Controlled Substances schedule related to THC since March 2021. THC was already on Texas’ Schedule I when the Legislature gave scheduling authority to the Commissioner of Health in 1989, and it has remained on Schedule I since that time.

In September 2020, the Commissioner objected to August 2020 DEA rule modifications to the extent that the new language may have allowed for the presence or addition of THCs aside from Delta-9 THC. DSHS held a public hearing in October 2020 to allow for public comment in accordance with the law. We did not receive any public comment and the DEA’s rule modifications were not adopted in Texas.

HB 1325 defined consumable hemp products as containing hemp. Both the state and federal definition of hemp allow for .3% or less Delta-9 THC. HB 1325 does not address any other isomer of THC.

DSHS has administrative enforcement authority over consumable hemp products. Law enforcement is responsible for investigating violations of the penal code.

"(Delta-8 is) only 20 percent as intoxicating as an equivalent amount of marijuana THC," said Jay Maguire, Executive Director of Texas Hemp Federation.

Maguire represents the plaintiffs in the lawsuit.

"Our argument is that DSHS failed to follow state law, and we'll get to the substantive argument about cannabinoids in the full litigation,” said Maguire.

And eventually, a final decision on whether this booming business can keep growing.

"Every day someone comes and tell us, ‘Thank you…because now I can sleep,’” said Powers.

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