Judge denies hemp companies’ lawsuit seeking to block DSHS’ rule classifying Delta 8 as illegal in Texas

State News

Delta 8 gummies sold at CBD store in Austin. (Maggie Glynn/Nexstar photo)

AUSTIN (Nexstar) — A Travis County judge has dismissed a request for a temporary restraining order filed by Hometown Hero, a hemp company based in Austin. The company is suing the Department of State Health Services’ determination to include Delta 8 in the state’s Schedule 1 controlled substances, and with the TRO rejected, that means the hemp derivative is still illegal in Texas.

Bayou City Hemp also joined the case 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,” the company said in a statement.

The companies allege that while DSHS is operating on the belief that Delta 8 is included in its list of Schedule 1 controlled substances, and was on-record in the spring at the Capitol stating so, it did not officially update its website until earlier this month.

DSHS, however, explained the agency does have this authority.

“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,” DSHS continued.

Still, the hemp companies state the lack of communication on the state agency’s decision is having detrimental impacts on the industry as a whole.

“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.

“Our next steps are to file a new suit that meets the legal burden so we can protect the rights and safety of Texans,” Meggs added.

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

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