District judge hears arguments on TRO in Delta-8 case

Arguments were heard today in the 261st district court on the matter of a proposed temporary restraining order against DSHS regarding delta-8.

The hearing opened with attorney David Sergi, representing Sky Market Corp, telling the judge that his clients are seeking a TRO to maintain the status quo.

Sergi told the judge that, “the DSHS stance flips the hemp definition on its head.”

Sergi continued telling the judge that the state conflates THC derived from hemp with THC derived from marijuana and that this case is about DSHS failure to follow procedure. Noting that the commissioner has to follow rules to make changes to the Texas Controlled Substances register under the similarly named act, as law.

Sergi the pointed out to the judge that 100’s were trying to get into the zoom hearing to see what’s going on. While nobody showed up to the DSHS hearing because it wasn’t posted properly for the public to know. DSHS put a non-searchable image on the website, it was not a text searchable image. This means that the people who spend every day for a living doing these searches on topics such as these, would not have found this hearing. He continued by noting that had this not been the case, the public would have likely shown up, just like they showed up today.

It was noted again that there is intense interest in this case. 100’s of proprietors throughout the state selling delta-8 and over 800 people were watching the live stream on youtube of this 261st District Court Emergency Dockett.

It was then put forth that if there was reason that DHSH position was going to be law, there would have been no need for two separate bills to have this information. There were two bills that attempted to include delta-8 language. It was noted again that all hemp less than 0.3 delta-9 thc (only this isomer is noted) along with derivatives has been made legal, and that the DSHS stance makes it illegal and it flips the hemp definition on its head.

From there it was pointed out that the state argues in their statements there are no changes that have been made. It was screen shared that there have been changes from 2020 to 2021. The difference being language added that states : Except for up to 0.3 percent delta-9 tetryhydrocannibnols in hemp.  And except for extracts derived from hemp (as defined under Texas AG code 121) containing up to 0.3% delta-9-THC on a dry weight basis.

The plaintiff acknowledged that they were reaching their time limit and handed the floor over to Ms. Cynthia Akatugba representing the state.

Ms. Akatugba then tells the judge that DSHS believes the legislature did not make a change and did not need to make a change because delta-8 was already illegal. 

She then makes the case that delta-8 was never made legal. Stating that the plaintiff is trying to use hemp as an exemption to the rule. She then makes the claim that the federal controlled substances list has kept delta-8 illegal per decisions made by the DEA. 

She then states that if the lege did not think delta-8 was a controlled substance they should have legislated as such, because they are under the belief that there is no difference between any THC isomer outside of delta-9. 

Regarding the register Akatugba stated that DSHS believes that there has been plenty of time for people to refute this at a meeting l, as it was in the register. Says it was in the register and to go “pick up a book and read it.”

The plaintiff was informed they had not used all of their time and have 5 minutes of their time left. Mr. Sergi then points out the register isn’t even likely available in a physical copy as of lately and that would make her suggestions unattainable.

He then notes that there is a specific carve out for hemp and that DSHS is trying to conflate all types of THC. That DSHS is trying to change the law when the lege did not change the law. 

Ms. Akatugba is then given the floor and tells the judge that just because you can make it from hemp does not make it legal. The statue points to natural plants. She then makes the argument that because it doesn’t occur at a high enough natural rate that it cannot be legal to be selling it. That advisories from the DEA and FDA have been put out that delta-8 is causing people to seek medical attention after ingesting. That the only thc acceptable is 0.3% delta-9 THC.

The judge then noted to both parties that the TRO would be on the basis of following the protocol, not on what the federal register or the Texas register for controlled substance says.

Akatugba continued and made claims the plaintiff is conflating THC isomers from marijuana and hemp. That the definition of THC and marijuana did not change and that anything outside 0.3% delta-9 THC.

Sergi reiterated what the judge stated, that the whole item is about the DSHS not following procedure. That they would prevail on these merits because everyone at the case has admitted to some extent that the agency did not follow the proper procedure. The meeting online being streamed was ended before the hearing was over and not returned to streaming. Gilkey provided the following repsonse shortly before 3pm.

Gilkey stated in an email, “Unfortunately, the live stream of the court hearing cut out at the very end. However, the judge stated that his staff and he needed more to time to review the documentation of the case. No decision on the Temporary Restraining Order has been made yet, but we expect a decision by tonight. We will update you as soon as that happens. We appreciate the continued support.”

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