The Texas Department of State Health Services updated its website Friday with the clarification that delta-8 THC products — which many thought were legal under the 2018 federal Farm Bill — are still considered a controlled substance in Texas.
A notice on the Consumable Hemp Program page now reads: “All other forms of THC, including Delta 8 in any concentration and Delta 9 exceeding 0.3%, are considered Schedule I controlled substances.”
House Bill 1325, which Gov. Greg Abbott signed in 2019, legalized hemp products under 0.3% tetrahydrocannabinol (THC).
A day before the change, The Dallas Morning News published a story about the product many thought was legal in Texas, or at least in a “gray area,” Kim Augsburger, who owns CBD American Shaman in College Station, told local station KBTX-TV.
Delta-8 is a cannabinoid that is extracted from cannabis plants, most often coming from hemp. It is sold in the form of edible candy, vape cartridges and oil tinctures and is said to produce a “high” similar to that experienced from marijuana.
Many North Texas businesses have started advertising the product, including a soon-to-come vape store in Frisco.
The product came into wide use under the federal farm bill, which changed the definition of lawful marijuana extracts to those containing “no more than 0.3% delta-9 THC” and legalized hemp products, including delta-8, federally.
In May, Stephen Pahl, the Texas health department’s associate commissioner for consumer protection, clarified during the regular legislative session that state law allows Commissioner John Hellerstedt to object to federal drug schedules, including delta-8. The clarification came as a response to House Bill 3948, which was filed by elected officials who believed the product was still legal.
“Because of the way the DEA defined a marijuana extract as only delta-9 THC, and because there are compounds, or isomers of THC, that have pharmacological or psychoactive properties, the [Texas] commissioner of health opted to object to those schedules,” Pahl told the committee. “Essentially, what that means is delta-8 still remains on the Schedule 1 drug schedule.”
The official notice was published on the Texas Register in late January, he said.
Still, many residents and licensed sellers of CBD products in Texas were unaware of its status, because it was not explicitly listed among the state’s controlled substances until Friday. The list now refers to the broader group of THC isomers that Pahl mentioned.
A few businesses are choosing to fight the new notice, including American CBD Shaman founder and owner Vince Sanders, who told the Dallas Observer his company will send a notice to the attorney general, local law enforcement and the health department opposing the decision to include THC isomers in the controlled substance list.
Texas Hemp Growers Association President Zachary Maxwell said Texas has not notified CBD operators of the product’s illegal status, but the group wants them to be aware that delta-8 and other THC isomers are illegal in the state.
The health department website includes a disclaimer that the organization has “no regulatory authority over controlled substances.” Enforcement is up to local and state law officials.
Under delta-8′s status as a controlled substance, anyone in possession of the products could face a felony charge punishable by up to two years in prison and a $10,000 fine.
At least six Texas residents have been charged with a felony over the last 90 days for delta-8 possession, Maxwell said.