A judge has denied a temporary restraining order against the Texas Department of State Health Services that was prompted by confusion in the cannabinoid industry.
Court documents show that the judge denied the order from Hometown Hero, an Austin-based company that sells delta-8 and CBD products, because “the plaintiff has not met requirements of a temporary restraining order.” The health department responded to the emergency order by stating there was no emergency.
Hometown Hero filed the suit on Thursday after the state health department issued a notice on its website on Oct. 15 that delta-8 products are illegal. Delta-8 is a less-potent alternative to the delta-9 product known as “marijuana.”
Ramping up in popularity months ago, it wasn’t until the website change that many Texans, including regular consumers and sellers of the products, learned that delta-8 was illegal in Texas. But official state documents show the Department of State Health Services has considered it a Schedule 1 controlled substance since early this year. An individual caught for possession could receive a felony charge, punishable by up to two years in prison and a $10,000 fine.
Lukas Gilkey, CEO of the Austin-based dispensary, said they believe DSHS “did not follow the proper procedures” to proclaim that delta-8 is illegal.
Hometown Hero will argue its case for a temporary injunction against the ban on Nov. 5. Until further notice, the business will remove all delta-8 products from its shelves, Gilkey said in a video Monday morning.
Some of the confusion on delta-8′s legal status stemmed from the 2018 Farm Bill, which legalized the product federally, but the bill allows individual states to write more stringent laws and diverge from the federal controlled substance schedule.
Many consumers and sellers did not know that DSHS Commissioner Hellerstedt rejected the Drug Enforcement Agency’s modification that legalized all hemp products — including delta-8 — in September 2020, followed by a public hearing weeks later.
No residents commented or submitted concerns, so Hellerstedt signed the official order in November and filed it with the Texas Register on Jan. 20.
Aside from the public notice, the decision was never broadly announced to the public, and more than 2,000 CBD licensees eligible to sell the product were not notified. A notice at the top of the Consumable Hemp Program page on the health department’s website now states that “delta-8 in any concentration” is illegal.
“It’s clear people didn’t know about this happening,” Heather Fazio, director of Texans for Responsible Marijuana, recently told The Dallas Morning News. “It goes to show that when DSHS wants to inform the public, they know how to do it. They also evidently know how to be sneaky when they want to.”
Several vape shops and sellers of hemp products have pushed back against the state’s discretion.
Ben Meggs, CEO and co-founder of the Houston-based Bayou City Hemp Company, will file a new suit “that meets the legal burden,” he announced in a news release.
“We’re surprised by the ruling as we believe procedural acts were violated by the Texas Department of State Health Services,” he wrote. “The true concern I have with this decision are the effects it has on farmers, businesses and consumers whose livelihood and well-being depend on it.”
He worries Texas’ ban of the product will result in a “black market with less checks and balances” and the product will still be “sold underground by bad parties in the industry.”
“The responsible action is to regulate the industry and have companies operate in the open with transparency,” Meggs wrote.
