Texas: Delta-8 cannabis extract is illegal

Three years after federal law removed the marijuana extract known as Delta-8 THC from the national controlled substances list, Texas health officials put it on their own list of illicit drugs, sending a shockwave through the growing CBD retail industry across the state and basically made the substance illegal.

Christine Perez, who runs the popular CBD store Lazydaze + Coffeeshop in Austin, had no idea of ​​the change until she saw the notice from the Texas Department of State Health Services on the agency's website on Oct.15.

"I was very confused, as have a number of other companies. I was like, 'What's going on here?'" Said Perez. "I really have no idea why [the state] would try to ban it, or when to do it. We haven't heard from the state about it."

It was easy to miss.

As reported by the Dallas Morning News earlier this week, the state health department posted a notice in its rule change publication, the Texas Register. It said that Delta-8 was still a controlled drug in Texas. Both the federal government and states can keep different lists of what a controlled substance is. Still, the CBD stores have not been told that it is illegal to sell products containing the substance, such as candy or tinctures, in Texas.

The CBD oil has become a top product for many Texas pharmacies as users say it creates the "high" effect of marijuana. The variant became popular after the 2018 Agriculture Act changed the definition of "legal marijuana extracts" to include any extract that contains less than 0.3% tetrahydrocannabinol (THC), including Delta-8. THC is the active psychoactive ingredient in marijuana that is responsible for the high in the user.

Almost two years ago Delta-8 was thought to be legal in Texas after Governor Greg Abbott signed House Bill 1325, which legalizes any hemp product with less than 0.3% THC.

But last week the DSHS announced that it had classified Delta-8 as a List I controlled substance, a category reserved for drugs with no recognized medical use such as heroin and LSD.

It is not the first time this debate has arisen over whether or not Delta-8 is a controlled substance in Texas. As DMN previously reported, Stephen Pahl, the Texas Department of Health's deputy consumer protection commissioner, informed lawmakers during this year's regular term that state law allows DSHS commissioner John Hellerstedt to object to federal drug lists, including Delta-8 . Legislators had considered a bill to make Delta-8 illegal, but it failed after health officials informed them that it had already been listed as a controlled substance by the state.

From the government's point of view, last week's announcement was merely a clarification.

"The DSHS has posted the following clarification on our website in response to recent inquiries from hemp growers who said there is confusion in the industry about what is allowed in consumable hemp products," said Lara Anton, a spokeswoman for the DSHS.

However, to retailers, the notice appeared arbitrary and unfair.

"This really comes out of the blue. It is not based on science or any real threat to Texans," said Rick Trojan III, a board member of the Hemp Industries Association. "The whole thing is confusing for everyone involved. It sounds like the DSHS doesn't even understand why they know what they are doing."

Trojan said he hadn't heard a "cannabis grower" confused about the law.

As of this announcement a week ago, several businesses claimed the state had done nothing to inform them that Delta-8 was illegal.

Lit Smoke & Vape, a CBD store in Allen, says it won't stop selling Delta-8 until forced to do so.

Other stores, like Your CBD in Mesquite, were unaware of the new guidelines when asked by the Texas Tribune. An hour later, the company took Delta-8 off the shelves.

"It's still on our shelves until a legal decision is made that it's illegal," said a manager at Lit Smoke & Vape. “These people have no authority over the law. So unless the law says it's illegal, we'll keep selling it. Two years ago they tried to ban CBD and they were sued and it failed. It so will happen again. "

In May last year, the Texas legislature tried to ban Delta-8, but failed.

Several companies, including CBD American Shaman, have announced legal action against the state.

In the meantime, many companies are wondering how the state will enforce the new guidelines.

"The DSHS can take enforcement action against licensees who sell consumable hemp products that contain controlled substances. The DSHS does not regulate the possession of controlled substances," said a DSHS spokesman.

However, Trojan believes that enforcement will be difficult.

"I heard that some sheriffs will not enforce the rules. I heard that the stores can sell what they have," Trojan said.