Policy Update: Delta-8 THC in Texas

TL:DR: Legislators made no change to Texas state law re: Delta-8 during the 2021 legislative session, but legality remains unclear.

Update on Efforts to Ban Delta-8 THC in Texas

The deadline has passed for the HB 3948 Conference Committee to submit their report. The report was not filed in time! Rep. Tracy King’s hemp bill fails to advance and no changes will be made to the hemp program.

This is disappointing for farmers and the hemp industry for a number of reasons, but…

Remarkably, this bill failing and the Delta-8 amendment being struck from Rep. Moody’s HB 2593, it has become clear that no changes will be made to the legal status of Delta-8 THC. 

This is good, but the conversation on Delta-8 is about to get very interesting…

Background on Delta-8 THC

The federal legalization of hemp, CBD, and all cannabinoids with trace amounts (.3%) Delta-9 THC has led to an explosion of interest in legal cannabis. With this new freedom, entrepreneurs in the hemp industry have driven molecular advancements to create Delta-8 THC from hemp-derived CBD.

Delta-8 is a naturally occurring cannabinoid, but it doesn’t usually exist in large amounts. Through the isomerization process, chemists can change the molecular structure of CBD, turning it into Delta-8. While it is chemically similar to Delta-9, it is distinctly different and legal under federal law.

State Law vs Federal Law

This is where it gets complicated…
The current legality of Delta-8 THC products in Texas was called into question when Stephen Pahl from the Department of State Health Services offered testimony during the hemp hearing. He testified that DSHS considers Delta-8 products ILLEGAL under current state law.

Watch Stephen Pahl’s Testimony (DSHS)

A decision published by the Commissioner John Hellerstedt, M.D. in January announces his decision to reject the federal government’s new definitions of THC and “Marijuana Extracts” as amended when they legalized hemp.

When the federal government changes their Controlled Substances Act (CSA), as it did when hemp was legalized, states have the option to adopt the new provisions administratively (through the Commissioner). The states can also reject the new policies, which is what Commissioner Hellerstedt decided to do in September 2020.

According to the commissioner, there was a hearing on October 6, 2020, but no public testimony offered or written comments submitted. Interestingly, his decision was initiated about the same time DSHS adopted the smokable hemp ban, but no one in the hemp industry knew about the change.

The Bottom Line

Commissioner Hellerstedt and DSHS are asserting that cannabis and cannabis products with more than .3% total THC are already illegal in Texas, even if the THC is Delta-8 and derived from hemp.

It’s unclear how the State of Texas will proceed.

Regulation is a Better Approach

How could the State of Texas move forward with enforcing a ban these widely available (and enjoyed) products? Will DSHS be in charge of enforcing these criminal penalties? Will DPS be tasked with this undesirable mission? Are they going to go in and raid every hemp shop in the state? I don’t think this cat is going back in the bag.

SOLUTION: End prohibition. Institute reasonable regulation.

Let’s make sure consumers are educated about driving under the influence, which would remain illegal, and age requirements to protect children. Regulations like this are in place for alcohol and they should be put in place for THC.

End prohibition. Legalize responsible adult use.

A Friendly Reminder

Consumer responsibility is critical in this emerging market. I urge caution and diligence when researching the company you’re buying from.

Driving under the influence is dangerous. Never drive or operate heavy machinery while impaired.

While there are no known human deaths from cannabis overdose, please keep cannabis products stored safely and away from pets and children. This is your responsibility. Please take it seriously.

When consuming cannabis products, especially infused edibles, always “Start Low and Go Slow.”