Texas Appeals Court Upholds Injunction on Hemp-Derived Delta-8

Texas court says no to delta-8 ban

The DSHS Lacked Jurisdiction To Categorize Delta-8 THC

Yesterday, the Texas Court of Appeals for the 3rd District stated that the Department of State Health Services (DSHS) did not adhere to the correct procedures and lacked the authority to prohibit delta-8 by including it in the controlled substances list. This makes for the sale and consumption of Delta-8 products in the state of Texas to remain legal for the time being. This milestone marks a massive victory for businesses and customers that embrace hemp derived delta-8 products.

Overstepping Rule-Making Boundaries

The injunction was granted in response to an enforcement action by the Texas Department of State Health Services and its commissioner. These officials had stated in an update to a consumable hemp program webpage that products exceeding 0.3% of delta-9 THC were considered legal, but all other types of THC, including any concentration of delta-8, were categorized as illegal Schedule I controlled substances.

In the legal case, CBD retailer Hometown Hero, along with a few others, argued that the department did not adhere to the correct rulemaking criteria outlined in the Texas Health & Safety Code and the Administrative Procedure Act (APA). The Third Court of Appeals confirmed that the group had the legal standing to challenge the department's decision and upheld the temporary injunction.

In a public statement made Thursday, Hometown Hero said, “The decision indicates that state organizations must follow the prescribed rule-making processes outlined in the APA when making significant changes that could affect individual rights or businesses.”

Hometown Hero also went on to state, “Not only does this ruling help save an $8 billion industry, and thousands of jobs, but it also gives adult consumers and veterans continued access to hemp-based cannabis products that have become vital to their everyday lives.”

What This Means For Hemp-Derived Products

This decision indicates that state organizations must follow the prescribed rule-making processes outlined in the APA when making significant changes that could affect individual rights or businesses. Currently, the sale and use of delta-8 products derived from hemp remain legal in Texas.

The state now has 15 days to make a decision on what they will do next, such as an appeal. In the event that the state doesn't challenge the recent judgment, the case will revert to the lower court for trial.

Official Court Reference: Texas Delta-8 Ruling 2023