Products containing delta-8 at Oasis A CBD Wellness Shop in Brownsville on Nov. 8, 2021. Credit: Eddie Gaspar/The Texas Tribune

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Over the past month, there has been increasing confusion over delta-8, the popular cannabis derivative that until recently could be found in vape cartridges, tinctures and candy at smoke shops and CBD stores across the state.

On the one hand, the Texas health department insists delta-8 is a controlled substance, and that it has been on the state’s list of unlawful drugs — also known as Schedule I drugs — for 40 years. But on the other hand, a recent court ruling temporarily stopped the state from keeping delta-8 on the scheduled substances list.

“THC was already on Texas’ Schedule I when the Legislature gave scheduling authority to the Commissioner of Health in 1989, and it has remained on Schedule I since that time,” said Lara Anton, a Texas Department of State Health Services spokesperson wrote.

So far, the Texas Department of Public Safety, the state’s law enforcement agency, has yet to make one arrest.

“DPS will continue to base its enforcement efforts on current statute,” said Ericka Miller, a DPS spokesperson. And because there’s no law against the substance, there have been no arrests by state troopers.

This legal impasse has left Texans and retailers scratching their heads on what they can and cannot buy and sell.

“It’s a huge gray area,” Rick Trojan III, a board member of the Hemp Industries Association, said. “The whole thing is confusing for everyone involved. It sounds like DSHS doesn’t even understand.”

And it is in this gray area where district attorneys, law enforcement officials and CBD dispensaries have been operating, all trying to navigate through the legal tangle.

A quick primer: Cannabis plants are classified as either marijuana or hemp, depending on their level of tetrahydrocannabinol, or THC, the active ingredient that produces the “high” experienced by marijuana users. Hemp has less than 0.3% of THC. Marijuana is a cannabis plant that has more than 0.3% of THC.

Hemp production was banned decades ago, when all cannabis products including marijuana were outlawed under the Marihuana Tax Act of 1937. But in 2018, the federal Farm Bill legalized hemp production.

Following the passage of that farm bill, a comprehensive measure for agriculture programs and food production, states began to write their own laws concerning hemp production.

In 2019, Texas passed House Bill 1325, which legalized hemp growing in the state. And like the federal standard, the Texas law defines hemp as a cannabis plant with a THC level of up to 0.3% concentration.

And that’s where delta-8 comes in. Delta-8 is a substance that is found naturally in hemp but it is produced in such low quantities that the substance that can be found in vape cartridges, candy and tinctures is likely manufactured.

And this is where the confusion begins. Many believed, since the 2018 Farm Bill legalized hemp, that delta-8 would also be legal. And since it had less than 0.3% of THC, the 2019 Texas law would also allow it.

“Those of us in the industry have been espousing for over a year now that delta-8 is, and always has been, a legal substance ever since the hemp farm bill,” said Ian Bush, the brand director at Hii Stick, a delta-8 retailer.

Confusion over whether delta-8 is legal to sell became such an issue — two years after the state’s hemp bill was approved — that on Oct. 15, the Texas health agency updated its website to clarify for the public that clarified that delta-8 was a Schedule I substance and therefore illegal. It maintains that delta-8, while it was being sold in stores, was never legal in Texas because the 2019 law never mentioned it.

The state’s notice did little to clear the air. Retailers challenged it in court and now the state is facing multiple lawsuits attempting to block DSHS from criminalizing delta-8. On Monday, state District Judge Jan Soifer, in Austin, granted a temporary injunction against the state, momentarily making delta-8 legal. However, the state is expected to appeal the ruling and both sides admit there is a “long road ahead,” according to Vape City attorney Michelle Donovan.

In the meantime, there appears to be no rush to prosecute anyone for selling it.

“I am not aware of any police agency having brought us a delta-8 case,” said Dane Schiller, spokesperson for the Harris County District Attorney’s Office.

The Texas Tribune

The Texas Tribune is the only member-supported, digital-first, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

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