A Comprehensive Summary Of The Legal Battle Over Delta-8 — House Bills, Regulations, Sneakiness And A Couple Of Hometown Heroes Fighting The State.

The legality of Delta-8 has been at a serious tug-of-war as of late, and we don’t blame you if haven’t been keeping up with the details. Hell, we weren’t even sure what the deal was. All we knew is that there’s basically legal weed in Texas and that the man is trying to take it away, because, of course.

It’s high time we learn all the details. So, let’s take a dive into the legal battle of Delta-8  — which by the way, is currently being spearheaded by a badass shop out of Austin — and figure out just what the timeline of events is, and what it all means.

It all started when the Farm Bill was signed into law back in December of 2018. Among other agricultural policies, the bill removed hemp-derived products from the Schedule I list of controlled substances. Hemp cannot contain more than 0.3 percent of THC, meaning that none of these newly-legalized products can get you high, and any hemp derivative that contains more than that percentage will be considered non-hemp cannabis — marijuana.

That didn’t mean the bill legalized hemp or CBD across the board, however. The granted approval of hemp cultivation still didn’t allow farmers to freely grow it like it was any other crop. It was made to be highly regulated, requiring licenses and consultation between the state’s governor and chief law enforcement officer to devise a plan to be submitted to the Secretary of USDA. CBD products were only allowed for specific situations set by state and federal regulations.

Then, in June of 2019, House Bill 1325 was passed, which permitted hemp to be “marketed for the use and production of natural CBD-based health products in Texas,” according to criminal lawyer Brett A. Podolsky. it further cemented the 0.3 percent rule — stating that all marijuana is hemp but not all hemp is marijuana — and requiring law enforcement to determine how much THC is in the weed that an individual possesses upon arrest.

Jumping forward to August of 2020, the DEA published an Interim Final Rule which put growers and processors at a higher risk of liability. The DEA stated that if THC levels surpass 0.3% at any point of the extraction process, the product will count as an illegal Schedule I controlled substance, even if the final product meets the legal amount. This change was not vocalized to manufacturers.

However, additional changes within the rule that seemingly worked towards deregulation of hemp, like stating that “tetrahydrocannabinol” does not include “any material, compound, mixture, or preparation that falls within the definition of hemp.” Basically saying that there is no overlap between THC and hemp/CBD in terms of legality. This is confusing because the previous point was talking about how if the levels of THC go over 0.3% while manufacturing hemp, then it’s no longer hemp. So in the process of trying to create clearer definitions of hemp, they’re muddying the waters.

Another change was removing DEA import/export controls for CBD, given that the product has remained under the 0.3%.

The Department of State Health Services didn’t agree with the Interim Final Rule and in response, filed a Notice of Objection the following month. By November, the DEA’s changes made by the rule were dead in the water when the DSHS signed a decision to not adopt it.

Two months after the decision, a modified version of the Schedule of Controlled Substances was published in the Texas Register with changed definitions to “marihuana extract” and THC. There were two things wrong with this. First, it’s regulation for actions to be published to the register within five business days — this took two months. Second, it wasn’t an HTML or PDF file, but an image, for some reason, meaning that the information could not be searched for and you would have to scroll through a super long document.

In May of the following year, 2021, the Water, Agriculture and Rural Affairs Committee met and a representative from DSHS stated that Delta-8 is considered a marijuana extract. This came out of the blue for the public, as this change of definition was made pretty much under the table.

In the same month, House Bill 2593 — which was on the up to change possession of THC concentrates from a felony charge to a Class B misdemeanor — got killed. Sen. Charles Perry from Lubbock had amended the bill to include Delta-8, but the House rejected this. Without the amendment, the committee approved the bill, however, Lt. Gov. Dan Patrick ignored the bill and let the session time run out.

In September, HB 1535 went into effect, which made more patients eligible for medicinal cannabis. This may have contributed to Delta-8 pushback, as they’re basically in competition with each other. The CDC also released a health warning regarding Delta-8 use, which definitely contributed to the pushback.

In October, the DSHS was at its sneaky self again and labeled Delta-8 as Schedule I without notifying the public, greatly affecting stores that sell the product. In response, Austin-based CBD company Hometown Hero, with the support of other companies, sued the DSHS and request a restraining order on the ban. The restraining order was denied on October 25, but on November 8, the court granted a temporary injunction, allowing the temporary selling of Delta-8 products until the final trial.

The final trial of the Hometown Hero V Texas DSHS case is set for January 28, 2022 — and there lies the next chapter of this saga.


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