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Texas hemp businesses are threatening legal action after the state health department placed hemp-derived delta-8-THC products on its list of illegal Schedule I drugs. 

Shortly after the federal government legalized the production of hemp at the end of 2018, cannabis scientists discovered a way to create psychoactive cannabinoids out of hemp, which is non-psychoactive in its natural form. In addition to producing CBD, many American hemp businesses are now producing a wide variety of delta-8- and delta-10-THC products, which can get people almost as high as the federally-banned delta-9-THC commonly found in marijuana.

In 2019, Texas Governor Greg Abbott signed a bill legalizing the production and sale of hemp products containing less than 0.3 percent THC content. But like federal hemp regulations, this law only specifically caps the content of delta-9-THC, and does not place limits on delta-8 or other psychoactive THC isomers. So it’s no surprise that delta-8 products have quickly become top sellers at local Texas hemp stores. 

The proliferation of unregulated THC products has struck fear into the hearts of conservative politicians, and many states are now banning these hemp-derived cannabinoids. Alabama, South Carolina, and many other states have recently moved to ban delta-8, and Texas just joined that list. On October 15th, the state Department of State Health Services (DSHS) posted a notice on its website stating that all forms of THC, “including Delta-8 in any concentration and Delta-9 exceeding 0.3%, are considered Schedule I controlled substances.”

Thanks to the rule change, nearly every hemp producer and retail shop in the state effectively changed from a legal business into an illegal drug dealer overnight. Now that these cannabinoids are considered Schedule I drugs, anyone that is caught making or selling them could potentially be arrested, fined, or even jailed.

“I was very confused, as well as a bunch of other companies,” said Christine Perez, manager of the Lazydaze+Coffeeshop CBD store in Austin to The Texas Tribune. “It’s like, ‘What is going on?’ I really have no idea why [the state] would try to ban it, or the timing of it. We didn’t hear anything about it from the state.” 

According to the DSHS, delta-8-THC has actually never been legal in the state, and the new rules simply clarify that fact. Several Texas hemp businesses said that state officials have never notified them of this important policy before last week, though, and there have been few reports of health department officials or police attempting to enforce a ban on these products. 

“This is really out of nowhere,” said Rick Trojan III, board member of the Hemp Industries Association, to The Texas Tribune. “It’s not based on science, it’s not based on any real threat to Texans. The whole thing is confusing for everyone involved. It sounds like DSHS doesn’t even understand… what they’re doing.”

Faced with the sudden risk of enforcement, some retailers may decide to pull delta-8 products off their shelves, but most companies say they will continue to sell these products for as long as they can. Other companies, including CBD American Shaman, are planning to take legal action against the state in an attempt to overturn the ban.

Most of the confusion over delta-8 and related cannabinoids stems from the federal government’s failure to establish official regulations or guidelines governing the sale of hemp-derived cannabis products. The FDA did just announce a new plan to advance its knowledge of novel cannabinoids, though, so there is still a chance that the feds will eventually get around to regulating these products on a national level.