IS DELTA 8 LEGAL IN TEXAS?

Can you sell delta-8 in Texas?

***Texas Delta-8 Update (4) – 11/08/21***

After initially banning Delta-8, a Travis County Judge has now sided with businesses selling delta-8 and is allowing delta-8 to be sold in Texas. The State plans on appealing this decision. The saga continues.

***Texas Delta-8 Update (3) – 10/26/21***

A Travis County District Court Judge denied plaintiff’s petition for a temporary restraining order. Hemp business owners are back to square one as it relates to selling delta-8. The next scheduled hearing date is 11/05/21.

***Texas Delta-8 Update (2) – 10/25/21***

A judge has heard arguments for a temporary restraining order (TRO) regarding DSHS recent decision banning delta-8 as a schedule 1 controlled substance. A decision has not yet been made. If successful, the TRO would allow manufacturers, distributers, and retailers to continue handling delta-8.

The petitioners best argument and what the court will focus on revolves around DSHS failure to follow procedure to make changes to the Texas Controlled Substance register.

The defendant (State of Texas) argued no changes have been made and that delta-8 has always been illegal. Stay tuned.

***Texas Delta-8 Update (1) – 10/18/21***

Just as soon as this blog hit, The Texas Department of State Health Services (DSHS) updated their definition of hemp, stating, “All other form of THC, including Delta 8 in any concentration and Delta 9 exceeding 0.3% are considered Schedule 1 controlled substances.”

As a Schedule 1 controlled substance if a person is caught with as much as a vape cartridge or package of gummies containing Delta 8 it is a felony.

How DPS and other Texas authorities will enforce this new ban will be determined, but distributers, retail shops, and buyers need to be aware.

What is Delta 8?

Delta-8 is a cannabis compound that has become popular because of its similarity to delta-9 THC. In other words it gets you high, albeit less potent. THC’s scientific name is delta-9-tetrahydrocannabinol and delta-8 is short for delta-8-tetrahydrocannabinol.

Is Delta-8 Legal in Texas?

Note: See updates above for recent opinions & decisions impacting Delta-8.

Currently, the legality of delta-8 in Texas is hazy. Delta-8 can be extracted from either hemp or cannabis. Because hemp can be legally grown and used for extractions all over the United States (including Texas), hemp extracted delta-8 seems legal in states where delta-9 THC is illegal. 

More so, most state laws use language prohibiting marijuana, cannabis, THC, CBD, and/or delta-9 tetrahydrocannabinol, but have yet to specifically address delta-8 THC. To date there are 11 states where delta-8 is believed to be illegal according to state law (Alaska, Arizona, Colorado, Delaware, Idaho, Iowa, Mississippi, Montana, Rhode Island, Utah).

The 2018 Farm Bill a federal act passed by Congress, legalized hemp in the United States. That act defines hemp as: “All derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent.” This language makes delta-8 legal, because it does not contain any delta-9 THC.

However, some states have chosen not to adopt this specific language of the farm bill in their own state laws, making delta-8 illegal in certain states. Producers and retailers of delta-8 sell only to states that have laws mirroring the farm bill’s language. Even then, some producers may only sell to certain states based on their own interpretation of a state’s laws. Texas adopted the specific language of the farm bill in their own state law.

Is Delta-8 Legal Under Federal Law

At the moment, yes. Barely. The federal Drug Enforcement Administration (DEA) has a proposed rule that has indirectly classified delta-8 THC as a Schedule I controlled substance. This rule, which is not yet final, would make delta-8 illegal on a federal level. That interim rule said: “All synthetically derived tetrahydrocannabinols remain Schedule I controlled substances,” which would make delta-8 illegal because it is a tetrahydrocannabinol that is extracted, or synthetically derived. 

So whether the farm bill’s language stands, which outlaws plants with more than 0.3% delta-9 THC, or the interim language is adopted, which bans all tetrahydrocannabinols, will determine the fate of delta-8.

Are Texans being Arrested for Possessing Delta-8?

Depends on the county (and size). In smaller counties The Adamo Law Firm has represented persons arrested and accused of possessing marijuana only to show it was in fact legal hemp. Fortunately, these cases ended in dismissals. The larger counties have not been arresting people for the same crime.

The legality of delta-8 in Texas is fluid. Stay up to date and current of Texas CBD laws if you are in the business of distributing or selling delta-8.

Sam Adamo