Texas High Court Set for a Delta 8 THC Battle
Texas has struggled with what to do with THC products, especially Delta-8 THC, ever since Texas followed the federal government’s lead when the 2018 Farm Bill Act was passed. The changes in legislation distinguished hemp and marijuana. It defined hemp as cannabis containing no more than 0.3% delta-9 THC, the primary psychoactive compound in marijuana. This change meant that THC that was 1) not specifically delta-9 THC and 2) less than .3% delta-9 THC was not illegal. This opened the door for a variety of products to be sold without limitation, including delta-8 THC, THCA, and substances with less than .3% delta-9 THC. Most of the discussion around the proliferation of these products has centered around delta-8 THC. In this article, we will discuss the take of the Texas Supreme Court on Delta-8 THC.
The Delta-8 Loophole
The Farm Bill focused on delta-9 THC, but left a loophole for other cannabinoids like delta-8 THC. Delta-8 occurs naturally in cannabis in small quantities, but it can also be synthesized from CBD. This synthetic delta-8 produces effects similar to, but generally milder than, delta-9 THC.
As Delta-8 products became popular, they fell into a gray area. Some argued that since delta-8 was derived from legal hemp, it should be legal. Others believed that since it’s psychoactive, it should be regulated like marijuana.
Prosecution Challenges
Prosecutors across the state faced issues dealing with Delta-8 cases. In the beginning, state labs couldn’t distinguish between delta-9 THC and other THC types. Millions were spent on equipment and new testing procedures, but the backlog of cases remained, and testing was expensive. To complicate things further, THC is often found in liquids like vape cartridges, yet the law defines THC concentration by dry weight. Many prosecutors began dropping these cases to avoid the high cost of testing.
Texas Tried to Nip Delta-8 THC in the Bud
In October 2021, the Texas Department of State Health Services (DSHS) updated its website to classify delta-8 THC as a Schedule I controlled substance, effectively making it illegal in the state.
Civil Lawsuit Begins
A group of hemp businesses, led by Sky Marketing Corp. (doing business as Hometown Hero), sued DSHS, claiming it overstepped its authority by classifying delta-8 as illegal without following the proper procedures.
The Legal Battle
In November 2021, a Travis County court granted a temporary injunction against the delta-8 ban. This decision was upheld in September 2023 by the Third Court of Appeals. Now, DSHS has appealed to the Texas Supreme Court, which will decide the legal status of delta-8 THC in Texas.
Key Issues Before the Texas Supreme Court
Standing and Enforcement Authority
One key argument is whether the plaintiffs have the right (standing) to bring the lawsuit. DSHS argues it doesn’t have the authority to enforce criminal penalties, which lies with local law enforcement. The plaintiffs counter that they face civil penalties under the state’s hemp licensing scheme, which DSHS does enforce.
Ultra Vires Actions and Sovereign Immunity
The plaintiffs also argue that DSHS overstepped its authority by classifying delta-8 as illegal without following proper procedures. DSHS, on the other hand, claims its actions were within its authority, and that sovereign immunity protects it from the lawsuit.
Administrative Procedure Act (APA) Violations
The plaintiffs accuse DSHS of violating the APA by failing to follow rule-making procedures when it declared delta-8 illegal on its website. DSHS contends the website update was informational and not subject to APA requirements.
Irreparable Harm and Public Interest
The court must weigh the potential harms to both sides. The plaintiffs argue that banning delta-8 will harm their businesses, while DSHS points to the public health risks of unregulated delta-8 products, including contaminants and negative health effects.
Broader Implications of the Case
The outcome of this case could impact more than just Texas. If DSHS wins, other states might follow Texas’s lead in cracking down on delta-8. If the plaintiffs win, it could create legal precedents that favor hemp businesses nationwide.
The Cannabis Industry Watches Closely
The cannabis industry, including hemp farmers and CBD manufacturers, is closely watching this case. Supporters of delta-8 believe it offers a milder alternative to delta-9 THC, while critics are concerned about the lack of regulation in delta-8 production.
The Road Ahead
The Texas Supreme Court must now navigate complex laws and regulations. Regardless of the outcome, this case highlights the challenges of regulating the rapidly evolving cannabis industry. As new products emerge, lawmakers must find a balance between innovation and public health concerns.
Conclusion
All eyes are on the Texas Supreme Court as it prepares to rule on this contentious issue. The court’s decision could shape cannabis laws in Texas and potentially across the United States for years to come.
