In its first two full years of legalization, delta-8 products saw $2 billion in sales. Since 2018, this derivative of the hemp plant has sparked no small amount of controversy. Some states have banned it, but most others have gone in the opposite direction.
Texas is in the latter category. It has permitted the sale and use of delta-8 products since 2019.
However, a state agency has sought to undo that. The complexities of these actions can be difficult to keep up with.
Is delta-8 legal in Texas? This article answers that question and provides some background about where the state has stood on delta-8, as well as where it may be heading.
What Is Delta-8?
Delta-8 is a naturally occurring substance found in the Cannabis sativa plant. It is one of more than 100 chemical compounds called “cannabinoids” in the plant. It is distinct from delta-9, the main cannabinoid in marijuana that causes a high.
Though less potent than delta-9, delta-8 can produce a euphoric high as well. This can impact mood, thoughts, feelings, and behaviors. Like delta-9, it too can lead to drowsiness, paranoia, and anxiety, especially in larger doses.
The 2018 Farm Bill
To adequately answer “Is delta-8 legal in Texas?,” we need to first go back to the 2018 Farm Bill. This is a federal piece of legislation passed every five years to establish or alter policies related to agriculture and food. It deals with everything from conservation and disaster assistance to nutrition programs for low-income families.
The 2018 Farm Bill included something fairly unique. It removed “hemp” from the definition of “marijuana” in the Controlled Substances Act. Under the new categorization, “hemp” is cannabis with very low concentrations of THC (under 0.3 percent). This opens the door to the legal cultivation, processing, and marketing of hemp, including products containing delta-8, throughout the country.
Texas Legislation to Legalize Delta-8
In 2019, in keeping with federal regulations, Texas lawmakers legalized “hemp,” or products that contain no more than 0.3 percent THC. This included delta-8. It also allowed the sale of cannabidiol (CBD), which is a compound that comes from cannabis but has no psychoactive properties.
It is worth noting that Texas did not permit the production of smokable forms of hemp in the state. While these products were legal to buy, sell, and possess, the Texas Department of State Health Services (DSHS) still bans the processing and manufacturing of them.
Delta-8 Regulation in Texas
In 2021, DSHS went a step further: it attempted to halt sales of delta-8 by classifying it as an illegal substance.
In the short term, it was unsuccessful. A hemp grower filed an injunction against them, and the resulting suit has been working its way through the courts.
There are different actors on both sides of this issue. Health experts, including the federal Food and Drug Administration, have warned about the negative impacts of delta-8, including the unsubstantiated perception that it is a safe alternative to marijuana.
Scientific studies are limited, and it can be difficult to know delta-8’s long-term effects. That is in part because humans have not been using it regularly for very long. For these reasons, more than a dozen states had banned delta-8 or other THC-containing derivatives by the time Texas began its attempt at doing so.
On the other side are consumers. This includes groups like veterans’ rights organizations that see delta-8 as a safer alternative to marijuana for those suffering from post-traumatic stress disorder. Its effectiveness in combating the impacts of similar mental health conditions, including anxiety and depression, is also notable.
Individuals using delta-8 are not alone. There is an entire supply chain that would be impacted by hemp abruptly becoming illegal. There are farmers who grow it, processors who convert it into delta-8 products, and retailers who sell it. None of these want to see delta-8 go away.
Is Delta-8 Legal in Texas?
Currently, the answer is “yes.” The producer’s injunction was granted by a district court in October 2021.
The primary argument was that DSHS did not give adequate notice of the change to producers. DSHS almost immediately filed an appeal. The state Court of Appeals denied that motion.
That brings us to the Texas Supreme Court. In August of this year, DSHS filed an opening brief with the Court, which is now awaiting the hemp producer’s response brief, which is due in October. While the Supreme Court could hear the case this year, it may not make a delta-8 THC ruling until 2025.
Where does that leave us in terms of delta-8 legality in Texas? The same place we were in 2018. Delta-8 is still legal to buy, sell, and possess, at least until the Texas Supreme Court makes its final decision.
Other Factors
There are other moving parts at play here. For starters, there has been a strong push– including from the current lieutenant governor–for the Legislature to pass a Texas delta-8 law banning all cannabis extracts, including delta-8. The Legislature goes into session in early 2025 and will almost certainly take up this issue.
Other bodies, including Congress, could do the same thing that DSHS is attempting to do. At the end of August, the U.S. House Committee on Agriculture approved an amendment to the current Farm Bill that would put an end to the gray market of intoxicating hemp-derived products. It would ban the production and sale of those that contained delta-8 THC, as well as others, like semi-synthetic cannabinoids.
The amendment would also reformulate the definition of “hemp” in the 2018 Farm Bill. In general, it would distinguish between hemp grown for cannabinoid extraction and industrial hemp, which is used in food, as fibers for textiles, and for scientific research.
Learn More About Delta-8 and Texas Law
Is delta-8 legal in Texas? Currently, the answer is “yes.” However, there are many factors at work that could undermine that status. It is important to stay on top of Texas cannabis laws and the pending state Supreme Court’s verdict.
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