Texas Court Says No to Delta-8 Ban

Texas' hemp journey hasn't been smooth.

A Texas appeals court upheld a temporary injunction against a state ban on delta-8 THC on Thursday, a win for a coalition of businesses and consumers contesting the ban’s legitimacy.

The block had been initially issued in response to an enforcement move by the Texas Department of State Health Services and its commissioner. Officials had declared via an update to a consumable hemp program webpage that products exceeding 0.3% of delta-9 THC as legal, but all other THC types, including any concentration of delta-8, were illegal Schedule I controlled substances.

In a lawsuit, CBD retailer Hometown Hero, Create A Cig Temple vape store, and consumers Darrell Suriff and David Walden alleged the department didn’t adhere to the Texas Health & Safety Code and the Administrative Procedure Act’s rulemaking criteria.

The three-member Third Court of Appeals panel confirmed that the group possesses the legal standing to dispute the department’s decision. They also maintained the temporary injunction.

The businesses reportedly cited drops in sales and job cuts due to the ban. They also highlighted personal stories of people benefiting from the hemp products, including help with opioid addiction challenges. These testimonies, which included the Texas Veterans of Foreign Wars’ director of government and public affairs, swayed judges.

The justices stated, “Viewing this evidence in the light most favorable to the trial court’s ruling, we conclude that there was some evidence to support the trial court’s finding of probable, imminent and irreparable injury in the interim.”

“This ruling helps save an $8 billion industry, and thousands of jobs, but it also gives adult consumers and veterans continued access to hemp-based cannabis products vital to their everyday lives,” Hometown Hero CBD said in a public statement Thursday.

“A commissioner and an agency tried to act outside of the legislative process bounds, without appropriate public notice or an opportunity to be heard,” Amanda G. Taylor, attorney for the challenging group, told Law360.

If the state does not appeal the recent opinion, the case will transition back to the lower court for trial. Taylor asserts that the case aligns with the 2019 statute legalizing consumable hemp products.

Earlier this month, a federal judge in Arkansas handed hemp-based product makers some hope after ruling that new state restrictions on delta-8 violated the Dormant Commerce Clause and the 2018 Farm Bill.

Texas’ hemp journey has been rocky since its start. Last year, a political consultant and former top aide of the state’s agricultural commissioner was indicted on felony theft charges and commercial bribery over a messy pay-to-play scheme, calling into question by political opponents the commissioner’s own proximity to the ruse.


Adam Jackson

Adam Jackson writes about the cannabis industry for the Green Market Report. He previously covered the Missouri Statehouse for the Columbia Missourian and has written for the Missouri Independent. He most recently covered retail, restaurants and other consumer companies for Bloomberg Business News. You can find him on Twitter at @adam_sjackson and email him at adam.jackson@crain.com.

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