Despite being federally legal and ruled legal in the state of Texas, Delta 8 continues to be challenged in the court of law. At the end of October, the Texas Department of State Health Services (DSHS) made a change to their website, stating that Delta 8 was suddenly illegal under state law. This came after two separate bills failed in the state congress earlier this year to ban Delta 8. 

So how did the law suddenly change? Well, it didn’t. DSHS doesn’t have legislative power to change the law. However, no one with legislative power challenged the information change on the website. This led to tons of confusion and outright anger from store owners and consumers, who have turned to Delta 8 as the Texas medical cannabis program continues to develop slowly. 

Shortly following the DSHS website change, a group of CBD stores banded together to file emergency action to remove the Delta 8 ban. On November 8, a circuit judge granted the emergency action, which suspended the Delta 8 ban across the state. This allowed stores to continue to sell Delta 8 products to eligible consumers. 

Challenge

However, two days later, DSHS filed an appeal to the emergency action granted to CBD stores regarding Delta 8. They claimed that the law hasn’t changed, they just properly updated their website to reflect the state law. If Delta 8 was banned, and had been banned since the state enacted its hemp program in 2019, why had stores been able to sell and make profit off of an illegal substance? That’s what the CBD stores argued, coming forward again to fight the appeal. 

The courts came back on November 18, saying that the injunction to the Delta 8 ban remains in place. Delta 8 remains legal in Texas, for now. 

Fighting Back

DSHS aren’t the only ones challenging Delta 8’s legality in Texas. Most recently, the Montgomery County District Attorney Brett W Ligon, R, wrote a letter to the state Attorney General, Ken Paxton. Within the letter, DA Ligon asked AG Paxton to file an opinion in favor of making Delta 8 illegal. 

If the attorney general does publish an official opinion, it won’t make Delta 8 illegal in Texas. Not right away. The attorney general reviews the laws of the state and can influence other lawmakers, like congress members and the governor, to write and submit bills to follow the attorney general’s opinion of the law. This could lead to Delta 8’s ban in Texas. 

Many stores would close and more and more people wouldn’t have access to a product they say helps with their anxiety, depression, or pain who don’t necessarily qualify for the state’s medical cannabis program. Or, perhaps, they do qualify for medical cannabis, but can’t afford their prescription. This is why the original injunction to the Delta 8 ban was enacted. 

Next Steps

With such controversy between DSHS and consumers, there could be a law change during the next regular session. Should Delta 8 become a concern for the legislature, we will keep you up to date with the latest.

Make sure to check back for more cannabis, hemp, and psychedelic related news.