Judge denies hemp companies’ lawsuit seeking to block DSHS’ rule classifying popular cannabis extract Delta-8 as illegal

Judge denies hemp companies’ lawsuit seeking to block DSHS’ rule classifying popular cannabis extract Delta-8 as illegal

Isabel Webb Carey
Isabel Webb Carey
October 25, 2021

Following the decision taken by Texas health officials to remove delta-8 THC from the nation’s list of controlled substances, hemp companies filed a lawsuit against the Department of State Health Services. A Travis County judge has since dismissed the request. 

The decision to include Delta 8 in the state’s Schedule 1 controlled substances comes three years after federal legislation removed the marijuana extract from the nation’s list of controlled substances. The news was delivered via notice in the rule change publication that said delta-8 remained a controlled drug in Texas, and came as a surprise to the CBD retail industry across the state. 

The lawsuit was initially filed by Hometown Hero, but Bayou City Hemp also joined as a plaintiff, citing DSHS did not follow proper procedure to make this decision. 

“We believe there are certain procedures required to modify the Schedule of Controlled Substances in Texas, and whether these procedures were followed are questionable. Additionally, there is conflicting language with this explicit exception that is confusing to consumers, businesses, and law enforcement and raises concerns of constitutionality,” Bayou City Hemp Company said in a statement.

After criticizing the lack of communication, the hemp companies also noted the ineffectiveness of drug policy positions based on prohibition. 

“Prohibition doesn’t work; we know that. Banning Delta-8 creates a black market with less checks and balances in which the cannabinoid will still be sold underground by bad parties in the industry. The responsible action is to regulate the industry and have companies operate in the open with transparency,” Ben Meggs, CEO and cofounder of Bayou City Hemp Company explained.

In a statement, the DSHS defended its inclusion of Delta 8 is included in its list of Schedule 1 controlled substances, despite neglecting to officially update its website until early October.

“On the DEA’s current list of Controlled Substances, Delta-8 is specifically named as one of the Tetrahydrocannabinols on Schedule I. DSHS has not made any changes to the Controlled Substances schedule related to THC since March 2021. THC was already on Texas’ Schedule I when the Legislature gave scheduling authority to the Commissioner of Health in 1989, and it has remained on Schedule I since that time,” a spokesperson for the agency explained. “House Bill 1325 defined consumable hemp products as containing hemp. Both the state and federal definitions of hemp allow for .3% or less delta-9 THC. HB 1325 does not address any other isomer of THC.”

The lawsuit is ongoing, with a preliminary injunction hearing set for November 5.

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Isabel Webb Carey

Isabel Webb Carey

Isabel Webb Carey attends the University of Texas at Austin in the Plan II Honors Program with a certificate in Core Texts and Ideas. Her interests include education, local governance, sustainability, and equity. Isabel enjoys dancing, hiking, and live music. She is also a staff writer for the Texas Orator. Email her at isabelwebbcarey@gmail.com
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