Delta 8 is in a weird position legally, sitting in a gray area that changes with each state. The 2018 farm bill legalized the production and sale of hemp in all 50 states. The document defines hemp as follows:

“All derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent.”

Because Delta 8 does not contain any Delta-9 THC, the language of the document makes it legal.

However, certain states chose not to adopt the specific language of the Farm Bill into state law, which made Delta 8 products illegal in those states. In states like Texas, where adult-use cannabis retail isn’t legal, the sale of low-dose THC products grew rapidly with the passing of the Farm Bill. Some states responded with an outright ban, which includes the State of Texas. Local and federal lawsuits have blocked the enforcement of state bans, though, including a federal judge in Arkansas.

In 2023, Congress was set to review and update the Farm Bill.

Delta-8 in Texas

Initially, Texas put a ban on hemp-derived products. This involves a multiyear effort from the state government to prohibit hemp-derived D8 products in Texas, and the fight continues. On September 28, 2023, the Texas Court of Appeals for the Third District of Austin ruled to uphold an injunction that blocks the Texas Department of State Health Services (DSHS) from classifying these products as Schedule I controlled Substances.

The case started from an instance in 2021 wherein the department modified the Texas schedules to include delta-8 THC.

In the summer of 2023, Whitney Economics released a report estimating that Texas cannabis businesses generated upwards of $8 billion dollars in 2022. The economic opportunity and implications of the industry are part of why Hometown Hero has led the fight against these bans, including the injunction against the DSHS.

Essentially, the case boils down to a claim that the DSHS violated the Texas Administrative Procedure Act (APA) when they added Delta 8 THC to the Schedule I list. Under the APA, a state agency must provide a reasonable opportunity for interested parties to submit arguments, views, or data. Without the opportunity, the businesses suffered harm, according to the findings of a trial court upheld by the injunction.

Biden’s Emergency Funding Bill Extends Farm Bill

On Thursday, November 13, 2023, President Joe Biden signed an emergency funding bill into law. The goal was to avoid a government shutdown. However, Reuters reported that the bill includes an extension of the Farm Bill until September 2024.

This extension allows Congress additional time to craft a new Farm Bill. Many advocates hope that it addresses the burgeoning market of hemp-derived cannabis products, including Delta-8 THC.

The Legal Future of Delta 8 in Texas

Currently, Delta-8 products are legal in Texas under the 2018 Farm Bill and the injunction that blocks the DSHS’s ban. With the 2024 review of the Farm Bill, many advocates hope that the language more clearly states that hemp-derived Delta-8 is legal.

The State may also decide to take the case to the Texas Supreme Court for review. However, this seems unlikely because the Texas Supreme Court already decided not to continue the ban on Delta-8 THC products at an earlier stage of the lawsuit.