Attorney Lisa Pittman recently appeared on the Texas Hemp Show as a guest and discussed the Texas delta-8 situation with the hosts.
When asked if the recent post by DSHS on their website had made delta-8 illegal, Pittman responded that it was already illegal.
“Delta-8 was already illegal. We have known this stance of DSHS for a year now. They objected to the DEA interim final rule in August 2020, which was to conform the US Controlled Substances Act to the fact that the farm bill happened and the farm bill created an exception of the definition for marijuana for hemp.”
Lisa noted that each state has its own Controlled Substances Act as well, and that the States can either fall in line with what the Feds do, or they can object to it. And that in the case of Texas, the Health and Human Services Commissioner objected to it. DSHS posted notice September, held a hearing in October.
Pittman continued, stating, “They later tweaked the definition of hemp in Texas and drastically changed the definition of Tetrahydrocannabinol in that they broadened it to include all THCs and analogs, et cetera. And they basically flipped the definition of hemp on its head. So where hemp, as we know the definition to be all of the derivatives and isomers and so forth. Everything deriving from hemp is legal on the definition of tetrahydrocannabinol. They changed it to where all THCs are illegal, even if they come from hemp unless it is the Delta-9 below .3%….
Pittman even noted that the unusual thing that they did was instead of posting it in text that you could search in the register, they posted a picture of it. That made it difficult for anyone to search for it in the register, even if they knew about it and they were looking at it. So the question for the court now is was that sufficient notice or not, under the law?
The hosts then asked about the motion for a TRO requested of the 261st district court, by Sky Marketing.
Pittman told the Texas Hemp Show, “So the denial of the TRO is no comment on the merits of the case. To get a temporary restraining order, you have to show an imminent emergency, right away harm. And that’s the most pressing thing. And so here DSHS argued. Well, this has been on the controlled substances list for 40 years. They might have been referring to THC delta-8 derived from marijuana. And as I mentioned, it’s been known for a year already, just positioned. So the fact that they just recently found out about it doesn’t create an emergency situation for which TRO is warranted.”
She notes that to get a TRO, you also have to show that you cannot be compensated by money in any way. And because this case is about “my business is going to be impacted by this all that can be compensated by money,” So, that’s another reason why it didn’t qualify for TRO.
“So on November 5, they’ll have a full hearing on the merits where I expect the judge will consider these issues of law,” Pittman stated.
You can read the full transcript of the interview here and listen in the embedded player above. As time goes on with this case we expect to hear from other attorney in the space on what the see and expect to come. You can stay up to date by subscribing here.
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