Delta-8 becomes legal again in Texas

New ruling legalizes the selling of marijuana extract drug, delta-8. Brittany Tankersley | Photographer

By Matt Kyle | Staff Writer

Delta-8 is temporarily legal in Texas after State District Court Judge Jan Soifer issued a temporary injunction against the state, saying the Texas Department of State Health Services did not adequately notify retailers that delta-8 would be illegal and therefore violated the state’s rule-making requirements.

Last month, the DSHS published a notice on its website saying that delta-8 THC — a marijuana extract that had been sold since the 2018 Farm Bill and the legalization of hemp-growing in Texas in 2019 — was a Schedule I drug and was therefore illegal. However, there is no law in Texas against delta-8, which makes the legality of the substance murky.

Some Waco CBD retailers said they took delta-8 off their shelves following the notice, while others said they continued to sell delta-8 because there was no law in writing banning the substance and they were never told to stop selling it. Additionally, state troopers haven’t made a single arrest for delta-8.

The DSHS said the state follows the Drug Enforcement Administration’s list of controlled substances, which delta-8 is on. But Sean Mitchell, the chief of intergovernmental affairs for the DEA, said in a June town hall meeting with the Florida Department of Agriculture and Consumer Services and the United States Department of Agriculture that the DEA only considers delta-9 THC greater than 0.3% a controlled substance, which would exclude delta-8.

Kelsey Balli, the assistant manager of Glass Phoenix, a smoke shop in Waco, said that the store never had any contact from the state regarding the ban on delta-8 and that it found out about the notice from Hometown Hero, a CBD retailer that Glass Phoenix uses for hemp products and that is currently suing the state in response to the delta-8 ban.

Balli said Glass Phoenix never stopped selling delta-8 products. After the notice was issued by the DSHS, Balli said Glass Phoenix did its research to see if it was still allowed to sell delta-8.

“In writing, there’s no law stating that we as a company could not sell delta-8, so we’re not breaking any laws,” Balli said. “We never took anything off of our shelves, because again, in our standpoint, we weren’t breaking any laws.”

Cameo Lang, the manager of CBD Plus USA, a CBD store in Waco, said that the store pulled all delta-8 products off its shelves on Oct. 26 following the notice and that it only recently began selling them again. She said the store was given no advance notice by the state and found out about the ban itself when reading the notice.

“We were upset,” Lang said. “[Delta-8] is a great product and helps lots of people. People depend on it to help them get off delta-9 or to help with medical conditions. People use it to relieve pain and stress.”