The legality of delta-8 THC in Texas is complicated. It is legal, ultimately, but only after some minor victories for the industry in a long-fought (and ongoing) litigation with the Department of State Health Services (DSHS). All the while, legislators have been attempting to get another ban signed into law, but so far, these have all failed somewhere along the road.
This leaves a lot of businesses and consumers in the state understandably confused and unclear about what the rules are in the state. We’ve looked through the laws and put together a run-down of the most important points.
Is Delta-8 THC Legal to Sell in Texas?
Delta-8 THC is currently legal to sell in Texas. However, the legal status of delta-8 is still ultimately undetermined because of an ongoing lawsuit that is currently in the Court of Appeals for the Third Judicial District.
Delta-8 THC became legal in Texas as a result of House Bill (HB) 1325, which passed in 2019 and defined hemp in the same way as the federal-level 2018 Farm Bill. This means that “all cannabinoids” contained in hemp – that is, cannabis plants with less than 0.3% delta-9 THC – are legal in the state.
However, the DSHS essentially declared delta-8 THC to be illegal in Texas in late 2021. A month later, the court granted Texas-based hemp company Hometown Hero a temporary injunction against the ban, basically maintaining the legality of delta-8 THC until the lawsuit is settled.
Spoiler alert: it is still not settled (as of August 2023).
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Delta-8 THC Legislation Timeline for Texas
Delta-8 THC was legalized in Texas in 2019, but the DSHS banned the substance (without properly informing stakeholders) in January 2021. This ban has been temporarily overturned, but the battle is still ongoing.
Texas joined most states in passing the wording of the 2018 Farm Bill into state law with HB 1325, which passed in June 2019. This legalized delta-8 THC, in the same way as the identical wording in many other states did. However, DSHS apparently didn’t agree with this, and objected to the DEA’s interim final rule which basically just adjusted the definitions of THC and “marihuana extract” to remove hemp.
While the DSHS continued to take action to ban delta-8 THC behind the scenes (there is more info and a full timeline in this post), most stakeholders were unaware of the changes they’d made until their website was updated on October 15th, 2021 (via Wayback Machine) to state that delta-8 THC was illegal. This led to a flurry of activity, with stores pulling delta-8 products from the shelves and some being raided.
Hometown Hero and other hemp companies set out to fight these changes. After a failed attempt to put a temporary restraining order on the ban, an injunction was granted against DSHS in November 2021. In short, the ban was temporarily lifted, pending the result of the court case.
At the most recent update from Hometown Hero, the case was still in appellate court awaiting a briefing notice. This part of the process alone can take a year or more, according to their blog post. In June 2023 the Court of Appeals for the Third Judicial District filed a notice setting oral argument for September 5, 2023 at 9am.
Can Delta-8 THC Be Added to Food?
Delta-8 THC cannot be added to food that will go into interstate commerce, but it is legal to add delta-8 THC to food in Texas, provided it is only sold within the state.
The federal Food, Drug and Cosmetic Act (FD&C Act) prevents hemp companies from selling food with hemp ingredients such as CBD or delta-8 THC across state lines. However, Texas law includes specific language explicitly stating that adding hemp ingredients to food doesn’t make it “adulterated.” In other words, Texas law disagrees with federal law here, so as long as the product stays within Texas, it is allowed.
Can You Buy Delta-8 in Texas?
You can buy delta-8 THC in Texas, at least until the court case is decided. Texas doesn’t really regulate delta-8 THC in the way other states regulate marijuana, so it can be sold both online and in brick-and-mortar stores.
Delta-8 Alternatives You Can Legally Buy in Texas
Delta-8 alternatives like delta-10, HHC and hemp delta-9 are also available in Texas. This is because the Farm Bill allows all of these products, and DSHS has thus far failed to pass any further limitations on hemp.
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However, hemp products intended for smoking are not allowed to be processed or manufactured in the state, but they can be sold.
Are There Age Restrictions on Delta-8 THC Products?
Surprisingly, there are no age restrictions on delta-8 THC products in Texas. The legal battle has been ongoing for years and yet nobody has taken a simple action to restrict intoxicating products to adults.
Can You Consume Delta-8 THC in Public in Texas?
There is technically no rule about consuming delta-8 THC in public in Texas, but you can’t smoke delta-8 THC in any place where smoking tobacco is banned.
It’s important to note that the state doesn’t have an overall smoke-free air law, but most localities have comprehensive laws preventing indoor smoking. For example, in Austin the bill is written in a way that would include delta-8 and covers most indoor public places and workplaces. However, state hemp law says nothing about public hemp product use.
Can You Drive Under the Influence of Delta-8 THC in Texas?
No, you can’t drive under the influence of delta-8 THC in Texas.
Texas law forbids driving while “intoxicated,” which is defined as “not having the normal use of mental or physical faculties” because of a substance of some type. Delta-8 THC makes you intoxicated, so you can’t drive under the influence.
This is a class B misdemeanor, punishable by a fine of up to $2,000 and between 72 hours and 180 days in jail.
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Can You Travel to Texas With Delta-8?
You can travel to Texas with delta-8 THC products provided that it is under the 0.3% delta-9 THC limit instituted by Texas law and the federal Farm Bill.
The Transport Security Administration (TSA) states that traveling with hemp is allowed provided it meets the limits of the federal Farm Bill. It’s a good idea to bring a Certificate of Analysis (COA) to prove that the product is hemp, though.
Closing Thoughts: The Future for Delta-8 in Texas
Delta-8 THC will remain under fire in Texas, and it probably won’t be legal for too much longer.
Even with the court case still ongoing, Texas has continued trying to ban delta-8 THC through other means. Senate Bill (SB) 264 (and the companion house bill HB 4238) aimed to ban the sale of hemp containing synthetically derived THCs – which would have included basically all delta-8 products. It also specifically said that you can’t apply “additional tetrahydrocannabinol” to a product at levels higher than 0.3%.
These bills have died with the end of the legislative session, but there are a couple more challenges to delta-8 THC in Texas. Firstly, courts could still rule in favor of DSHS in the ongoing case, which could re-open the ban. Secondly, the DEA’s recent announcement ahead of the federal 2023 Farm Bill could create issues for delta-8 THC across much of the country.
Delta-8 THC could pass through all of these roadblocks and remain legal, but it’s definitely going to be an uphill battle.
