Texas CBD and vape shops are searching for answers, and some have filed temporary restraining orders against the state, after they say health officials abruptly announced last week that they had added delta-8 THC products to their list of Schedule I controlled substances.
Delta-8 is a less-potent alternative to the delta-9 product known as marijuana, though it produces similar effects.
Official state documents show that for months, the Department of State Health Services has considered the product illegal.
But Ashley Flood, who owns a CBD American Shaman franchise in Allen, and other shop owners and consumers say they were never informed of the decision that Commissioner John Hellerstedt announced more than a year ago or the move to update the state’s website.
“We didn’t find out from the state, we didn’t find out from law enforcement, we didn’t find out via letter, email — nothing. We found out from one of our suppliers,” Flood said after finding out about the change to the DSHS website.
Heather Fazio, director of Texans for Responsible Marijuana, said that despite the confusion, she’ll consider delta-8 products illegal because that’s the opinion of the state health officials who were given the authority to maintain the substance schedule.
“It’s clear people didn’t know about this happening,” she said. “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.”
Flood said law enforcement hasn’t come knocking at the doors of her shop — at least not to tell her to stop selling delta-8.
“We’ve talked to several customers who are in law enforcement — apparently, we’re nowhere on the agenda,” she said. “They were just as unaware as everybody else.”
2018 Farm Bill
Many sellers and consumers of delta-8 THC products are unsure what to believe or do.
Some of the confusion stems from the 2018 Farm Bill, which legalized the product federally. But it allows individual states to write more stringent laws and diverge from the federal controlled substance schedule.
In the case of delta-8, Hellerstedt rejected the Drug Enforcement Agency’s modification that legalized all hemp products — including delta-8 — in September 2020.
The state held a public hearing weeks later, in October, and no residents commented or wrote concerns. 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.
Some delta-8 sellers, such as Chris Fagan of Bee Hippy hemp dispensary in Garland, still believe it is legal because there is a “gray area” under a law that Gov. Greg Abbott signed in 2019 legalizing hemp products with less than 0.3% tetrahydrocannabinol.
“We’re not losing sleep over it because we know the law hasn’t changed,” Fagan said.
The law doesn’t mention delta-8 products, which weren’t widely known when it passed.
Texas Hemp Growers President Zachary Maxwell said although it isn’t mentioned in the state bill, he believes regulatory authorities would recognize that Texas lawmakers didn’t intend to legalize the product when the bill was filed. In fact, they tried to ban the products during this year’s legislative session but abandoned the effort when Stephen Pahl, an associate health commissioner, informed them that Hellerstedt had already deemed it illegal.
Fagan, who opened his Garland store in late June, believes the only justification that should be considered is the bill’s text.
“To me, the matter of intention doesn’t matter,” Fagan said. “It’s already been federally legalized, so we need to be at least in compliance with what’s federally happening.”
The bill author, Rep. Tracy King, D-Batesville, did not respond to requests for comment.
Fazio, who advocates for responsible marijuana use, said the contradicting texts have caused confusion for many.
“It’s not abundantly clear [in the legislation],” she said. “But it’s the opinion of the state of Texas that these products are illegal.”
Artistic Organics CBD Wellness, a dispensary in Frisco, said Wednesday in an email to customers that they were in limbo but to stay calm.
“We do not want our customers to panic, but we do not know the outcome and implications of this change,” the email said. “We are currently reviewing this and will keep everyone updated.”
Flood said she’s purchased $20,000 worth of delta-8 products for her CBD American Shaman store, which account for 50-60 percent of her profit. If they’re illegal, her Allen franchise won’t come out unscathed.
“As far as the business goes, it’s going to be a hit,” she said.
But Flood’s chief concern isn’t staying afloat. She worries for her customers who consume delta-8 for medical reasons or as an alternative for a previous substance-use problem.
“There’s a lot of people that stopped taking other really bad things [or] medications for this because it was working for them,” Flood said.
“That’s a big concern.”