Friday October 18th, the Texas Department of State Health Services (DSHS) announced on a FAQ page that delta-8 was illegal to sell in the state.
Can consumable hemp products in Texas contain Delta-8 tetrahydrocannabinol (THC)?
No. Texas Health and Safety Code Chapter 443 (HSC 443), established by House Bill 1325 (86th Legislature), allows Consumable Hemp Products in Texas that do not exceed 0.3% Delta-9 tetrahydrocannabinol (THC). All other forms of THC, including Delta-8 in any concentration and Delta-9 exceeding 0.3%, are considered Schedule I controlled substances. A list of Schedule I controlled substances can be found at the following link: Schedule I Controlled Substances.Complaints regarding controlled substances should be referred to law enforcement. DSHS has no regulatory authority over controlled substances.
DHSH Consumable Hemp FAQ
Days before this, Zachary Maxwell, President of the Texas Hemp Growers, had posted on LinkedIn something similar. Maxwell posted that the agency had take note on DSHS telling the Houston Biz Journal that the substance was illegal.
Reposting of this information from the THGA on the TCC FB page returned comments ranging from thinking it was fake, thinking that DSHS had overstepped its bounds, and some not surprised by the move DSHS had made given they had vocalized the same sentiment in the Senate committee hearing.
Retailers are already reaching out to attorney’s to see what they think of this. While some are of the notion that DSHS is in the wrong, they also believe that a lawsuit is not likely to win given that it would be taken all the way up to the Supreme Court of Texas and would face a stiff conservative panel of judges.
One company though is not taking that position. Lukas Gilkey, founder of Hometown Hero, posted on YouTube that his company plans to get an injunction and fight the state on this stance.
“We believe the court will side with our arguments as it is clear, the prohibitionist DSHS used a seat with hidden documents that are required to be public to try and attack us since they cannot beat us in the last legislative session. They’re using backhanded ways to create legislation and go against the will of the people,” Gilkey told the public.
Gilkey also notes in the video that in the last legislative session there were multiple efforts by Senator Perry and DSHS to make Delta-8 illegal. That when those efforts failed, in retaliation the hemp groups such as Hometown Hero were referenced by Perry as being no different than a drug cartel.
Gilkey continues stating, “We argue that we have done nothing illegal and simply want to see the will of the people of Texas come to fruition in regards to cannabis. We fully understand that in a post-pandemic world, thousands of stores and tens of thousands of families in Texas rely on Hemp derived cannabis products. That is why we are taking this fight on.”
It is possible that this update from DSHS was placed up on their website because of the large number of people asking how to take this information being pushed out. Two retired police officers that run a blog style reporter website posted up the following recently.
It has been speculation in the community as well that the DSHS position was made so that even if the legislature failed to make delta-8 illegal by law, it would empower police departments with immunity to arrest for it. One of the complaints from police departments since the passing of HB1325 is the lack of training and guidance. But with a state level agency publicly stating it is illegal in Texas and no department policy to say otherwise, it gives officers immunity in court if they arrest someone and the case is overturned.
As well, the language used by DSHS alarms farmers in the space because it explicitly outlaws a substance that occurs naturally in the hemp plant. This stance puts crops at risk if any lab comes back with a delta-8 positive lab and enforcement offices decide to move forward with prosecution. Testimony during legislative session hinted that groups are working on creating strains of hemp plants where the flowers have higher concentrations of the naturally occurring substance.
The Texas Department of Agriculture has yet to weigh in on the topic of delta-8 during session or after this announcement by DSHS.
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