Delta-8 THC is arguably the most talked-about cannabinoid currently on the market today. It’s a variant or homolog of delta-9-THC capable of causing a mild-to-moderate high. Many are actually branding it “The New THC”. And that’s not even the best part. Delta-8-THC is the connection between federally legal hemp and federally illegal marijuana, acting as a federally legal high across many U.S. states.
However, legal highs (from cannabis or otherwise) have been strictly regulated or prohibited in the United States. Will delta-8 suffer the same fate? Will Texas see delta-8 prohibition?
Is delta-8 legal in Texas?
Delta-8 THC is currently legal in Texas after Travis County judge temporarily blocked the state from classifying it as a controlled substance.
A final trial set for January 2022 will make a decision on the case between Hometown Hero vs. DSHS.
Under state law, hemp-derived delta-8 THC with less than 0.3% THC is legal to buy and sell.
You are able to purchase, possess, and consume hemp-derived delta-8 products without landing yourself in trouble with Texan law enforcement.
In 2020, the DEA issued an interim final rule addressing delta-8-THC’s legal status — believes it could be “synthetically-derived” and a controlled substance, making it federally illegal.
Delta-8 isn’t naturally abundant in hemp plants. It requires manufacturers to convert CBD into delta-8. Some believe this conversion makes delta-8 a synthetic, while others don’t believe this is the case.
If labeled a synthetic variant of THC, delta-8 could be outlawed and deemed illegal in the future.
On November 8, 2021, the court granted Hometown Hero’s application for a temporary injunction which prohibits the “rule stated on DSHS’s website that Delta-8 THC in any concentration is considered a Schedule I controlled substance.” A final hearing of this case is set for January 2022.
As of November 8th, hemp-derived delta-8 THC (with less than 0.3% THC) is legal to buy and sell in Texas.
You can read the court’s new ruling in the case below.
Sky Marketing Corporation, which does business as Hometown Hero, is fighting back against Texas and its decision to ban delta-8 and categorize it as a schedule I controlled substance. The company filed a lawsuit in Travis County requesting a temporary restraining order (TRO) to block the ban but was rejected by State District Judge Gary Harger on October 22nd, 2021. A full court hearing is set for November 5th.
Hometown Hero’s CEO Lukas Gilkey recently posted a video on YouTube asking for other companies to file their own temporary restraining orders, as well as offering guidance and resources to vendors and retail stores affected by the ban.
Currently, Vape City, a Houston-based vape company with 75 retail stores across the US, and CBD American Shaman are the only other companies to file a similar lawsuit but have yet to receive a response.
As of writing this, the use, possession, sale, distribution, and production of hemp-derived delta-8 THC remain illegal in Texas.
Updated October 15, 2021:
Despite TX House Bill 2593 failing to ban delta-8 products, the Texas Department of State Health Service updated its website on October 15, 2021, claiming delta-8 is now prohibited in the Lone Star State.
According to the DSHS website, delta-8 in all concentrations and delta-9 above 0.3% are now controlled substances under Texas’ Controlled Substances Act. This means the use, possession, purchase, sale, distribution, and production of delta-8 products are strictly illegal and punishable under the state’s penal code.
Previously, delta-8 was presumed legal after Gov. Greg Abbott signed TX House Bill 1325 legalizing all hemp-derived compounds, provided they’re sourced from hemp plants carrying no more than 0.3%.
As of right now, delta-8 is a schedule I controlled substance in Texas, placing it alongside heroin, LSD, MDMA (ecstasy), and psilocybin as having no medical value and open to abuse.
Penalties for the use, possession, sale, distribution, and production of a schedule I controlled substance can result in imprisonment, a fine, or both.
CBD American Shaman and other companies are taking legal action against Texas.
Updated September 2021:
Recently, delta-8 THC’s legality in the state of Texas was hanging in the balance. State lawmakers attempted to brazenly ban delta-8 within an inch of its life, causing uproar in the Texan cannabis community.
Texas House Bill 2593, which sought to reduce criminal penalties for the possession of THC concentrates, was controversially amended during the Senate floor debate to limit the quantity of all tetrahydrocannabinols to 0.3% per product. This amendment would have made all products carrying above 0.3% delta-8 illegal under Texan law, resulting in a huge financial blow to delta-8 retailers and suppliers operating in the state.
Thankfully, the bill failed to pass and died in the legislature after a House conference committee removed the amendment and the Senate later failed to vote. This means the use, possession, production, sale, and distribution of delta-8 remains legal in Texas.
Hemp-derived Delta-8 THC is no longer legal in Texas. All hemp-derived cannabinoids, terpenes, flavonoids, and isomers are not allowed for sale, distribution, possession, and use. See the latest updates above.
How Texas falls in line with federal law
In 2018, the Trump administration signed the Agriculture Improvement Act (Farm Bill) into law, allowing the cultivation, production, distribution, possession, and use of hemp and hemp-derived products. It also removed all tetrahydrocannabinols in hemp (THCA, THCV, and delta-8 THC) from the list of controlled substances.
Previously, the federal government categorized all cannabis (including hemp) as a Schedule I controlled substance, deeming it illegal. The Farm Bill essentially differentiates between hemp and marijuana (medical cannabis).
Differentiating between hemp and marijuana
This differentiation is important — and it’s all to do with how much THC (still a controlled substance if above 0.3%) is present in the plant. Hemp typically carries less than 0.3% THC, while marijuana carries up to 15-20% THC on average. Because 0.3% is the legal limit, hemp is equally legal.
Due to hemp’s federally legal status, all plant hemp-derived compounds (minus THC) are totally legal, which includes delta 8. As mentioned, Texas follows this federal ruling and allows delta-8 THC to be sold, distributed, possessed, and consumed under state law.
According to Edna’s Unbaked CBD, a small but valuable Youtube channel hosted by its knowledgeable company CEO, an unnamed Texan law enforcement officer confirmed delta-8 THC is totally legal not only across the state of Texas but in most states across the US. Even the drug enforcement division told him delta 8 is legal under state law, simply because Texan law falls in line with federal law under the Farm Bill 2018.
And here’s the (kind of) bad news about delta-8 in Texas
Despite being federally legal under the 2018 Farm Bill, delta-8’s growing popularity as a “legal” hemp-derived high has caught the attention of the Drug Enforcement Administration (DEA).
In August 2020, the DEA issued an interim final rule seeking to address the status of delta-8 THC, which it believes is a “synthetically-derived” tetrahydrocannabinol analog and must be scheduled under the Controlled Substances Act (CSA) to comply with the 2018 Farm Bill.
The confusion surrounding the DEA’s 2020 ruling
The DEA’s rule doesn’t clearly define what it means by “synthetically-derived”, opening it up to interpretation and a whole lot of confusion, especially from cannabis brands currently selling delta-8 THC products in Texas and beyond.
Since it’s a “minor” cannabinoid and only present in trace concentrations (up to 1%), hemp producers and manufacturers are converting CBD into delta-8 THC via an isomerization process. Isomerization simply means turning one isomer (CBD) into another isomer (delta-8) by altering the molecular structure but not adding or removing anything from it.
The devil’s in the definition
This is where the confusion comes in. Some believe the DEA is taking the dictionary meaning of “synthetic” and applying it here. The dictionary definition of synthetic is “relating to, or produced by chemical or biochemical synthesis.” If this is true, the synthesis of CBD to delta-8 THC may actually be an illegal practice.
However, others suggest “synthetically-derived” doesn’t apply here since neither hemp-derived CBD nor delta-8 is strictly a man-made chemical, and the isomerization of CBD to delta-8 doesn’t result in a synthetic compound. True synthetic cannabinoids (K2, Spice) are exclusively created in laboratories using only laboratory chemicals. No natural cannabis plants are used in the process.
So, right now? Delta-8 is federally legal under the 2018 Farm Bill but the process of turning CBD into delta-8 THC is under fire and fraught with contradictions. The DEA could see it as a synthetically-created cannabinoid, placing it as a Schedule I controlled substance.
How are companies getting around the law?
CBD and cannabis companies don’t have to “get around” the law, per se. It’s federally legal under the 2018 Farm Bill. They just have to be very careful with how they conduct business surrounding the production, manufacturing, and distribution of delta-8 THC products since the DEA got involved.
Many brands have enlisted the help of lawyers to make sure they’re not overstepping the mark and interpreting federal law, DEA ruling, the 2018 Farm Bill the wrong way.
A long-standing cannabis brand with one of the biggest delta-8 product lineups we’ve seen. Really impressive.
Large range of inhalable delta 8 products (pre-rolls + vape cartridges), as well as a delta-8 + CBC.
The vape cartridge carries over 50% delta-8 and 14% CBC to “enter your flow state and uplift your spirit”, while the delta-8 pre-rolls contain roughly 105 mg of delta-8 + CBG and other beneficial plant compounds.
The delta-8 + CBC capsules have 30 capsules in a box. Each capsule carries a generous but still reasonably mild 10 mg of delta-8 alongside 5 mg of CBC. Provides you a gradual dose of delta-8 + CBC. Useful for relief throughout the day.
Five CBD is very consistent across the board. They’re known to many as one of the more established brands in the cannabis industry. Very trustworthy and safety conscious.
Delta-8-THC products include vapes, gummies, tinctures, and edibles.
Full-spectrum delta-8 oil = Carries roughly 20 mg of delta-8 per mL. Moderate potency. Great for beginners looking for a moderate buzz and ultimate relief. Carries other beneficial cannabinoids such as CBD, CBG, and CBN.
Full-spectrum delta-8 capsules = Accurate 7.5 mg dose of delta-8 + other plant compounds. Again, suitable for beginners looking for a gradual dose and a refreshing buzz. Very balanced.
We love this brand. Very underrated but packed full of amazing delta-8 products. Very effective. Safety conscious, too.
Variety is clearly the spice of life with Plain Jane. You’ll find high-quality delta-8 hemp flower, pre-rolls, tinctures, gummies, and vape cartridges on offer.
We highly recommend the delta-8 CBG + “Legendary” hemp flower for the most natural and balanced high. Carries 8% delta-8 + 10% CBG. The delta-8 gummies and tinctures are better for slow, gradual relief.