DELTA-8 temporary injunction case heard by 345th District court

The live stream for the hearing on delta-8 in the Travis County 345th District Court was Friday November 5th, 9 AM
This article will become updated as events unfold during the hearing: a decision was made, click here to read more

The case is being presided over by Judge Jan Soifer.

Opening statements: Mr. David Sergi – plaintiff Sky Marketing Corp- argued that they have people losing financially and people that will face irreparable harm that cannot be compensated financially and that DSHS should be enjoined in this case as they did not follow the proper procedure for this

Cynthia Akatugba – defense – DSHS – stated that the requirement for an injunction is to maintain the status quo, but that the changes to the TX CSA was made Nov of 2020 and that the new status quo was in place at the time for request of injunctive relief.

Witness Jay Maguire of the Texas Hemp Federation is called to testify. Mr. Sergi asks what he does as far as research of the register. Maguire states that he searches the Texas Register on regular basis for issues regarding hemp.

Akatugba then cross examines. She shows the Texas register and a notice posted the year before where DSHS objected to the changes of the CSA and with concern to THC isomers. The register then points people to stay up to date via DSHS website. Akatugba then asks Maguire to read the website notes to which she claims her questions of reading the site are YES/NO answers of what is taking place, and that this is proper notice for the public. Maguire notes again that the requirement is that the notice of the hearing be posted in the registry.

Akatugba cell phone goes off twice and she apologizes. It goes off a 3rd time and she is asked to turn the ringer off and then answers that she does not know how to do that.

Mitch Fuller of the VFW is called as a witness. He is asked by Sergi on his role. He tells the court about how he participates in the legislature and that any discussion regarding delta-8 appeared to point that for the product to become outlawed it would have to go through the legislature.

Fuller is asked if he a consumer, Yes I am, he responds. My post has an agreement with HH to have a delta-8 vending machine for us to use in our post. He notes that his veterans have been having issues with their mental health and an uptick in issues once the machine had to be removed after the notice.

Eldred asks if they are part of TCUP – Fuller notes he is not but he notes that one member of his VFW is part of the program and it is cost prohibitive, especially since the VA cannot prescribe this.

Shop owner Jahoon Kim is called to the stand. He presents a letter to the court from the city of Copperas Cove. The city stated that they are threatening him with legal prosecution if he continues selling delta-8. There was no cross examination.

Jonathon Hamer of Sky Corp since 2016 takes the stand and is questioned by Sergi about the business of Hometown Hero. He notes that their company carried delta-8 up until the point where they were made aware of the delta-8 change. Now that its removed he estimates they will have to lay off 50% or more of the company and may wind up going bankrupt due to supply chain issues (being unrealiable) on other products in the next month. The company is not seeking compensation from the decision.

Akatugba asks when the company start selling delta-8 products in Texas, Hamer responds that he is not sure but he believes it was likely some point in 2019.

Darrell Suriff called to the stand. He is the owner of Naturally Hemp, manufacturer of delta-8, and 33 stores that sells these products. Used the products. He uses them because of an injury 8 years ago and these products have helped him get off of opiates. The removal puts his business at risk with employees. He won’t go under but keeping the Vietnamese immigrants employed will be difficult with this revenue missing. Customers are blaming the company for removing it from shelves and they have to point that the DSHS website. The manufacture has been shut down as well and those employees are not allowed on site. Many fear arrests and seizure of property if on site.

David Walden – part of VFW, combat veteran. States that he was injured in combat and consumes delta-8 products until the DSHS decision came out. He stated the reasons for why he uses, back injuries and PTSD being a few of the diagnosis. States that he had an addiction, not in abusive way, to opioids and did not like the way he felt. He described the situations he went through while on those meds, such as carrying his cane like a rifle. Walden then does in to how he came across CBD and delta-8.

The hearing continuously displays why in person court needs to be held – there have been barking dogs and other employees in offices talking during the meeting.

Eldred asks when he started using delta-8. Walden is not sure when exactly he started using. He only remembers that him finding out it was legal when he started taking and that it may be 2019.

Sergi asks if he is part of VFW. Fuller is his commander and a past 3 time commander of that post. Walden is asked if there is a vending machine in the post and he confirms there is but it has been unloaded and unplugged. Walden is asked by Sergi if the there has been a noticeable change in the veterans. He states that there has been and it appears there is more anxiety, but that he is not a doctor and cannot diagnose that. He doesn’t see the sense of calm he saw before.

Sergi then asks how not being able to purchase affect Walden. Walden notices that the pain has elevated. He notices that his own anxiety has ramped back up and the he has had to consider going back to his PTSD therapy.

Eldred ask Walden about the vending machine. Walden notes that not everything he buys comes from a vending machine. But that everything that came from the machine was a legal product.

Sergi starts closing argument: We believe the commissioner did not conform their process to 481.034g of the TX Health and Safety Code and that the gatekeeping function requirement was not met due to DEA not changing the status of delta-8. The commissioner did not have authorization to make changes. The DEA only on conformed to the Farm Bill. The commissioner acted without authority. The TX legislature adopted the same language as the 2018 Farm Bill to define hemp. This did not the commissioner the authority nor was any regulation triggered that allowed him to write new law to the schedule. The state attempted to change the schedule would not change what the schedules were, but just that the department objected. Sergi then notes that the required steps to change the schedule were not met either such as providing scientific evidence. Then the state did not provide the proper required notice to the public for input in a hearing, which even DSHS and the state showed they did not do that. Sergi points out that the DEA has admitted on video that it only can do what the law requires and that it was only did what the Farm Bill required.

The court recorder Michelle Williamson has made notice during Sergi’s argument that she cannot keep up with Sergi as he talks about the codes that are required to be followed. It should be noted that both sides are on a time limit to get their point across per the court docket rules laid down by the judge.

Ms. Akatugba shares a power point that talks about why temp injunction

The judges asks what the status quo is., isn’t case about the status quo before the controversy. Akatugba says that she is now sure when the status quo is because they believe the register is not required to be text searchable and that the interpretation of the law under the commissioner is the only one with authority outside of the legislature because it benefits them and their consumer. That the plaintiffs are asking to continue breaking the law because they want to because they didn’t feel they were given adequate notice in court. Chapter 481 requires the Commissioner to keep the schedule in line with the federal government so he had to reschedule, but that he also objected to the DEA rule. Akatugba has argued the state had to change the law regarding delta-8 and because the federal government required it to be done, but that at the same time the Commissioner also objected to the DEA rule. She states that the notice of the public hearing was pointed out in the capture of the register stating that the commissioner has concern and within that post in the register pointing to the DSHS website meeting the requirement.

The court reporter has yet again said that the speech is moving too fast for her to keep up.

The judge has asked to clarify the definition of hemp and their interpretation. She notes that the definition does not include whether hemp can or cannot have delta-8.

Akatugba notes that delta-9 is capped at 0.3 to stop people from getting high and that in marijuana delta-8 is not doing that because there is not enough delta-8. She continues and notes that the register was available and internet searches are not a requirement.

The judges asks if she acknowledges that COVID has changed in person vs searchable on the internet. Akatugba relents to the concept that it has changed and that an in person register is not always viable.

Akatugba argues that posting the link to the meeting in a registry notice that doesn’t explicitly say they are changing the CSA is adequate notice. All of this is posted as a slide show on screen share. She then speaks to the difference between the definitions in the CSA federally for hemp. The argument she says that plaintiffs are using is that as long as it came from hemp it was legal. Akatugba states that makes no sense as it would make any chemical that may have been previously controlled now exempt and basically creates two classes of chemical legalities that are in conflict.

The argument is then made that the patients that are suffering should not be able to skirt TCUP to get their medication by claiming they got it from hemp. She then claims they just did not try TCUP or that the reason of it being expensive is not a viable excuse to go to hemp and then break the law. Akatugba notes that TCUP is a well regulated program and that anybody needing relief should be on that program to stay compliant with the law.

Sergi noted in his rebuttal that all cannabinoids as stated by the legislature means all cannabinoids and that delta-8 is not in the legislature language to be prohibited. He notes there are 1400 people watching live on YouTube, and that the notice was inadequate given the conditions due to COVID and that one of the witnesses have a license to sell delta-8 in the state of Texas.

The judge adjourned and everyone will await judgement.

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