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Delta 8 in Texas: Legal or Illegal?

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After its meteoric rise, Delta 8 might soon be a thing of the past in Texas after the Texas  Department of State Health Services (DSHS)  declared on its website that D8 was illegal. Here is what was put out:

“All other forms of THC, including Delta-8 in any concentration and Delta-9 exceeding 0.3%, are considered Schedule I Controlled Substances.”

This statement technically made D8 products, regardless of origin, illegal in the state. According to Texas Hemp Growers, the delta 8 market in Texas has a current value of $50 million. 

Delta 8 is one of the numerous bioactive compounds in cannabis Sativa classified as a cannabinoid. It is an isomer of the popular psychoactive cannabinoid THC. While the two share the same chemical formula, they have a slightly different structure. This makes them behave differently in the body. However, they both exhibit some level of psychoactivity; THC is more potent than delta-8. 

Why Was There So Much Frenzy Surrounding Delta-8?

Delta 8 took the cannabis market by storm last year, and the following is still growing. Some reports have cited that it is the fastest-growing market segment in 2021. At the same time, it is attracting intense skepticism from lawmakers. 

So far, 18 states have legalized marijuana for recreational use, and a few others are having positive discussions about it. In all other states, it is impossible to get high on marijuana since it is outlawed. Delta 8, which can be synthesized from legal hemp-derived CBD, created a unique opportunity for people to get high legally. After all, this is getting high on hemp and not on marijuana. 

However, the delta 8 euphoria in Texas seems to have been short-lived. It is believed that Robert Mechoulam, one of the founding fathers of medicinal cannabis, discovered delta 8 in 1965. However, it was not until 2020 that delta 8 products began hitting dispensary shelves hard and fast and flying off at an even faster rate. While canna-businesses were eager to cash in on the delta 8 frenzy, consumers pounced on the rare opportunity to get legally high. 

The Texas DSHS interpretation of House Bill 1325 is that all forms of THC, including D8, fall under Schedule I controlled substances. This class of compounds has no know medicinal value and has a high likelihood for abuse. Other compounds in this class include heroin, mescaline, KSD, and MDMA, among others. However, some residents of Texas do not see eye to eye with the DSHS on this issue. One CBD retailer moved the matter to court, asking the judge to overthrow the decision by the DSHS to ban delta 8 in the state. 

Judge Denies Request to Block Delta 8 Ban in Texas

A CBD retailer in Austin requested a judge to prevent Texas health officials from listing D8 under schedule 1, making it illegal. Hometown Hero, the CBD retailer, wanted the court to grant a restraining order to the DSHS. However, the state district judge, Gary Harger, refused to give the request because the plaintiff failed to meet a temporary restraining order requirement. A subsequent hearing on this matter was scheduled for November, and it created a spanner in the works. Is Delta 8 legal or illegal in Texas?

Hometown Hero Wins the Delta 8 Case

Hometown Hero was granted a temporary injunction to stop delta 8 from being declared illegal in the state, even as a full trial is awaited in January 2022. This makes delta 8 “legal again” in Texas until further notice. The attorneys for Hometown Hero argued that the State Health Services failed to notify the public about the existence of such a case that would ultimately determine the legality of delta 8. Industry stakeholders only came to learn of this when the DSHS updated its website. 

HB 1325 legalized the production and distribution of hemp and hemp products in Texas. Hemp, in this case, refers to cannabis Sativa that contains less than 0.3% THC. State health officials have argued that THC isomers such as delta-8 are not included in this equation, thus making it illegal.

No Delta 8 Arrests as Yet

Thanks to the confusion surrounding delta 8, there have not been any arrests in the state yet. Speaking to Texas Tribune, Ericka Miller, the DPS spokesperson, stated that there have been no arrests so far because there is no specific law against delta 8. The DPS bases its enforcement efforts on the current applicable statute. 

It is easy to access delta 8 popular products such as vapes, candies, and tinctures from CBD stores littered across the state. Now that the courts again ruled in favor of Hometown Hero, nothing will stop CBD retailers from vending D8 out in the open. 

Delta 8 occurs naturally in hemp. However, it occurs in such minute quantities that it cannot be extracted economically. Therefore, most of the delta 8 that is found in Texas, and other states as well, is synthesized from hem-derived CBD. This is why delta 8 advocates insist it is legal because it is made from hemp that was legalized by the 2018 hemp farm bill.

What if Delta 8 is Declared Illegal?

If delta 8 is declared illegal in Texas, those selling the products will incur huge losses. We might witness a couple of prosecutions which might lead to a two-year jail sentence or a 10,000 fine. While there are no exact figures for how much the delta 8 market is worth, reliable estimates from Texas Hemp Growers suggest a current value of $50 million. For consumers, this will be a painful farewell to getting “legally high,” at least going by the excitement that delta 8 has generated in the past.  

What if Delta 8 is Declared Legal?

If delta 8 is declared legal, it will be a win for all. Those selling delta 8 are likely to record even higher sales, and consumers will be free to enjoy as much of it as they like. Compared to delta 9, delta-8 causes milder intoxication and can therefore be tolerated by most people. We are also likely to see more research on delta 8 to determine its therapeutic potential, just as has happened with other cannabinoids. Lastly, the state government will have the final laugh since collecting more taxes and spending fewer resources on arresting and prosecuting marijuana-related charges. 

A Long Road Ahead

The back and forth around the legality of delta 8 may not be ending any time soon. For as long as marijuana remains a scheduled substance under federal law and hemp remains legal under that same law, both sides of the divide will always have ground to argue their case. In the meantime, the delta 8 market will continue to thrive since there have not been any arrests or prosecutions by the DPS. 



Lydia K. (Bsc. RN) is a cannabis writer, which, considering where you’re reading this, makes perfect sense. Currently, she is a regular writer for Mace Media. In the past, she has written for MyBud, RX Leaf & Dine Magazine (Canada), CBDShopy (UK) and Cannavalate & Pharmadiol (Australia). She is best known for writing epic news articles and medical pieces. Occasionally, she deviates from news and science and creates humorous articles. And boy doesn't she love that! She equally enjoys ice cream, as should all right-thinking people.