EDIT: Because of the move to the appellate court and the Texas Supreme court, the set court date of January 28th is now removed.
Early Monday morning Judge Jan Soifer of the 345th district court issued a temporary injunction on the ban of delta-8 products by DSHS.
After a tense and problem plagued hearing Friday morning, the judge has reviewed the submitted evidence and testimony. The court arrived at a decision on a temporary injunction this morning has some retailers questioning if they are clear to place products back on the shelf.
“The Texas Rules of Appellate Procedure provide a mechanism to the Attorney General’s Office to automatically suspend a temporary injunction duly entered by a co-equal branch of government. This forces the Plaintiffs to then seek redress with the appellate court. As long as this rule stands in Texas, the state of Texas and its agencies can ignore any injunction covering any subject matter entered by any trial court in the entire state of Texas simply by filing a notice of appeal and invoking the rule with the correct requesting language. This is not how due process works in America,” cannabis attorney Chelsie Spencer told Texas Cannabis Collective.
Attorney Andrea Steel posted on LinkedIn that this means that TEMPORARILY the amendments to the definitions of “tetrahydrocannabinol” and “marihuana extract” that were made in the 2021 Texas Schedule of Controlled Substances are to revert back to the 2020 definitions. This also means TEMPORARILY the DSHS website portions about delta-8 are not effective.
Steel told Texas Cannabis Collective, ““There were some clear missteps made by DSHS in amending the Texas Schedule of Controlled Substances outside of the public’s knowledge and without their ability to participate. Because of those missteps, DSHS ended up using language that effectively bans hemp and full spectrum hemp products altogether, including hemp-derived delta-8. If this were any other subject matter, the case would be open and shut. I’m glad the Judge was able to see through the confusing and distracting issues brought up by the State and conclude there was enough in question and enough at stake to rule in favor of Hometown Hero and the other Plaintiffs. Of course, we agree with the Judge here.”
Attorney Susan Hays noted to TCC, “This TI order makes clear the issue that’s been bubbling under the surface of the D8 controversy: that Texans want access to THC products for pent up medical use. If Texas had a reasonable and accessible medical cannabis program that demand would shift.”
Comparisons have been made in the hemp community between the delta-8 ban and the smokable hemp ban case that was heard earlier this year. Smokable hemp case was completely different as plaintiffs were arguing against a statutory categorical ban with absolutely no criminal repercussion. In the current case the plaintiff is arguing against what the state asserts is a scheduled substance. The smokable hemp ban case didn’t mount a Texas APA challenge.
Other possible confusions that have come into play is about DSHS part in scheduling and the state consumable hemp program. They have regulatory authority over scheduling. When they make the statement on the consumable hemp page, they are stating they do not have that regulatory authority within the hemp program because the program governs consumable hemp products and they are stating a scheduled substance is not a CHP.
A very interesting portion of the injunction are parts 3 and 4 which state, “3. Plaintiffs have shown a probable right to declaratory and injunctive relief because Commissioner Hellerstedt’s action amending the definitions failed to meet the requirements found in § 481.034 of the Texas Health & Safety Code, and DSHS’s rule as stated on its website concerning Delta-8 failed to comply with the rule making requirements found in the APA. 4. As a result of Commissioner Hellerstedt’s ultra vires actions and DSHS’s APA violations, Plaintiffs will suffer imminent and irreparable harm such as brand erosion, reputational damage, including loss of customers’ goodwill, unsalvageable loss of nationwide customers, loss of market share, loss of marketing techniques, employee force reduction, revenue lost and costs incurred by not being able to manufacture, process, distribute, or sell hemp products that fall within the newly adopted definitions for “tetrahydrocannabinol” and/or “Marihuana extract,” having to relocate or shut down part of Plaintiffs’ businesses and contributing to the insolvency of Plaintiffs’ vendors and customers, and subjecting all of Plaintiffs’ employees and similarly situated company employees and individual consumers to potential arrest and other criminal penalties. In addition, Plaintiffs Darrell Suriff and David Walden, along with other similarly situated individual consumers throughout Texas, will have no effective treatment to anxiety, depression, insomnia, migraines, loss of appetite, chronic pain, and nausea. Plaintiffs, along with these other individuals, may be forced to seek other
2 dangerous alternatives, like opioids or street drugs.
The order concludes IT IS FURTHER ORDERED, ADJUDGED, and DECREED that a final trial on the merits is set for January 28, 2022.
Linked again for ease is a copy of the temporary injunction.