In recent months, Delta-8—a cannabinoid derived from the hemp plant—has emerged in Texas news. Delta-8 products have been sold in Texas since the Agriculture Improvement Act of 2018, commonly known as the 2018 Farm Bill, legalized hemp. But two months ago, the Texas Department of State Health Services announced the addition of Delta-8 to the State's schedule of controlled substances. A number of Delta-8 retailers and consumers sued the State and have obtained a temporary injunction keeping Delta-8 substances legal while the litigation works its way through Texas courts. This article provides a brief history of Delta-8 and discusses the recent legal challenges to the State's addition of Delta-8 to the schedule of controlled substances.

Background

On December 20, 2018, President Donald Trump signed the 2018 Farm Bill into law. The 2018 Farm Bill removed hemp from Schedule I of the federal Controlled Substances Act and effectively legalized the commercial production of hemp. This change led to the creation of a new hemp industry in the United States. The 2018 Farm Bill also authorized each state to submit a state plan to regulate hemp programs.

On June 10, 2019, Governor Greg Abbott signed into law Texas House Bill 1325, which amended Title 5 of the Texas Agriculture Code. House Bill 1325 added a subtitle that defined "hemp" as "the plant Cannabis sativa L. and any part of that plant . . . with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis." Tex. Agric. Code § 121.001. The new subtitle also required the Texas Department of Agriculture to "develop a state plan to monitor and regulate the production of hemp" and "submit the plan . . . to the secretary of the United States Department of Agriculture." Tex. Agric. Code § 121.003. House Bill 1325 also amended the Health and Safety Code to remove hemp from the definition of the term "controlled substance." Tex. Health & Safety Code § 481.002.

These changes to federal and Texas state law paved the way for a vibrant new hemp industry in Texas. Indeed, many Texans launched businesses centered around the cultivation, production, and sale of hemp-related products. One popular offering from these businesses are products containing Delta-8 THC. These products containing Delta-8 THC have become the center of recent litigation.

What Happened?

Recently, the Department of State Health Services (DSHS) effectively made Delta-8 THC illegal in Texas. Specifically, the DSHS Commissioner amended the definitions for the terms "tetrahydrocannabinols" and "Marihuana extract" in Texas's 2021 annual schedule of controlled substances. And, on October 15, 2021, DSHS published on its website information suggesting that Delta-8 was now illegal in Texas. A group of business owners and interested persons sued DSHS and its Commissioner. The plaintiffs claimed that DSHS failed to follow the proper rule-making procedures under Texas's Administrative Procedures Act and that the DSHS Commissioner acted outside his statutory authority by amending the 2021 annual schedule of controlled substances.

Status of the Litigation

On November 8, 2021, a state district court in Austin granted the plaintiffs' application for a temporary injunction, and enjoined the effectiveness going forward of the amendments to the terms "tetrahydrocannabinols" and "Marihuana extract" and of the rule stated on DSHS's website suggesting that Delta-8 was illegal in Texas. This injunction lasts through the final trial on the merits of the lawsuit brought against the DSHS and its Commissioner.

The DSHS and its Commissioner appealed the temporary injunction to the Austin Third Court of Appeals. By rule, the State's appeal automatically paused the effectiveness of the trial court's injunction. In response, the plaintiffs filed an emergency motion in the Third Court of Appeals seeking to preserve the injunction during the pendency of the State's appeal. The Third Court granted the plaintiffs' emergency motion and reinstated the district court's injunction, thereby maintaining the status quo until the disposition of the appeal. See Texas Dep't of State Health Servs. v. Sky Marketing Corp., No. 03-21-00571-CV, 2021 WL 5457200 (Tex. App.—Austin Nov. 18, 2021, order [mand. Denied]).

The State then filed a petition for writ of mandamus and an Emergency Motion for Temporary Relief in the Supreme Court of Texas, asking that court to undo the Third Court's reinstatement of the temporary injunction. On December 10, 2021, the Texas Supreme Court denied the mandamus petition and emergency motion without a written order, allowing the district court's injunction to remain in effect.

What does this all mean?

Because the district court's temporary injunction barring the effectiveness of DSHS's addition of Delta-8 to the schedule of controlled substances remains intact, Delta-8 products are legal in Texas for the time being. The State's interlocutory appeal is still pending, and the merits of the lawsuit must still be resolved in the district court. For now, however, Texas retailers may continue to sell Delta-8 products. This article will be updated to include the final disposition of the case.

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