Texas Supreme Court Denies DSHS request to Ban Delta 8 THC

Texas Supreme Court Denies DSHS request to Ban Delta 8 THC

Texas Delta 8 shops have had an uphill battle regarding Delta 8 THC. Earlier this year, the Texas Department of State Health Services filed a motion to eliminate the sale of Delta 8 in the state — briefly bringing small-business Delta 8 to a halt.

It was a temporary building block that had local hemp retailers, manufacturers, distributors, and shops scrambling to secure the future of their businesses. In late October, DSHS abruptly specified that Delta 8 THC was a Schedule I controlled substance — therefore illegal in Texas. In fact, the DSHS stated, Texas Health and Safety Code Chapter 443 (HSC 443), stabled 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.

The building block was scrutinized and deemed irresponsible by Texas-based hemp companies since the beginning. The Texas community of hemp businesses banded together to fight the Texas DSHS and their injunction to completely prohibit the sale of Delta 8 THC. In their favor, a Texas district judge ruled on in favor of removing Delta-8 THC from the state’s list of controlled substances until the court determines whether the state followed the law when it ruled the hemp-derived products illegal. 

Delta 8 Legal in Texas

In the latest attempt to get Delta 8 out of shops, the Department of State Health Services (DSHS) asked the Texas Supreme Court to step in. The state health agency and hemp manufacturers have been fighting in court over the legal status of Delta 8 in Texas.

While the DSHS has since filed a motion with the Texas Supreme Court to have a ban on the products reinstated — that request was denied. An injunction on the ban is still in effect, meaning THC isomer products are still legal for sale, transport, and possession in the state.

  • Delta 8 THC is currently legal in Texas after Travis County judge temporarily blocked the state from classifying it as a controlled substance.
  • Under state law, hemp-derived delta-8 THC with less than 0.3% THC is legal to buy and sell.
  • You are able to purchase, possess, and consume hemp-derived delta-8 products without landing yourself in trouble with Texan law enforcement.

Texas Delta 8 Timeline

November 8, 2021: The court granted Hometown Hero’s application for a temporary injunction. As a result, delta-8 is not classed as a controlled substance and businesses can legally sell hemp-derived delta-8 with less than 0.3% THC. This injunction lasts until the conclusion of the final trial of this case. “The Court hereby enjoins the effectiveness going forward of the rule stated on DSHS’s website that Delta-8 THC in any concentration is considered a Schedule I controlled substance.”

December 10, 2021: The DSHS requested the Texas Supreme Court to hear the case. The request was denied, according to a video released by Hometown Hero. This means that the case Hometown Hero v Texas DSHS stays in the Texas Appellate Court until the case is ruled on in about 6-12 months.

January 28, 2022 (TBD): The final trial for the Hometown Hero v Texas DSHS case is set for January 2022.


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