'We Won Again': Texas Supreme Court Leaves Delta-8 Legal For Now, but The Fight's Not Over

In the latest attempt to get THC isomer products like delta-8 out of stores, the Department of State Health Services (DSHS) asked the Texas Supreme Court to step in.

The state health agency and Austin hemp manufacturer Hometown Hero CBD have been duking it out in court over the legal status of THC isomers in Texas for the last few months.

DSHS filed a motion with the Texas Supreme Court to have a ban on the products reinstated, but that request was denied on Friday. An injunction on the ban is still in effect, meaning THC isomer products are still legal for sale, transport and possession in the state.

Lukas Gilkey, founder and CEO of Hometown Hero, has posted regular updates on YouTube about the ban since he and others filed suit against the state earlier this year.

“We won again,” Gilkey said in a video Friday. “This is a huge win for Texas businesses, Texas veterans and Texans looking for medicinal relief from products they can easily acquire.”

DSHS didn't respond to the Observer's request for comment. The recent Texas Supreme Court ruling sends the case back to the court of appeals, where it could take between six months and a year to resolve.

This most recent legal battle regarding delta-8 began in mid-October when DSHS added a notice to its website saying THC isomers in any concentration were considered Schedule 1 controlled substances. This contradicted what consumers, retailers and manufacturers thought was legal under federal and state hemp laws.

The 2018 federal Farm Bill, as well as Texas House Bill 1325 in 2019, legalized the growing of hemp that contains less than 0.3% delta-9 THC. Isomers are chemicals that share the same formula but have different chemical structures and effects. Delta-9 is the naturally occurring chemical that gets cannabis users high; it's isomers appear in lesser amounts in the plant and are frequently created synthetically by manufacturers.

On the state and federal level, hemp is defined as “any part of that plant, including the seeds of the plant and 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% on a dry weight basis.”

But when the Drug Enforcement Agency “designates, reschedules or deletes” a substance from its list of controlled substances, states can choose whether or not to adopt those changes.

Last August, the DEA updated its list of controlled substances, amending the definition of "marijuana extract" to align it with the 2018 Farm Bill.

DSHS says the state objected to these changes and, as required by law, held a hearing where the public could weigh in. No one showed up to the hearing or sent in public comments, so DSHS commissioner John Hellerstedt rejected the changes.

In doing so, the state also amended definitions in its list of controlled substances to include THC isomers like delta-8.

But attorneys representing Hometown Hero claim that the DEA didn’t designate, reschedule or delete anything from its list of controlled substances. This would mean the state wasn’t triggered to make any changes to its list. They also say no one showed up to the public hearing about the changes because proper notice wasn’t given. So, Hometown Hero and others filed suit and eventually got an injunction on the ban.

DSHS appealed this decision, temporarily making THC isomers illegal again. But the appeals court ruled in Hometown Hero’s favor, upholding the injunction while the case is being litigated. That’s when DSHS asked the Texas Supreme Court to weigh in and reverse this decision. That request was denied last week. (In Texas, the state's decision to appeal an injunction generally cancels the injunction while the appeal is being ongoing.)

Gilkey said their fight is still far from over. If this were a football game, they’re still in the first quarter, he said. Either way, the latest Texas Supreme Court decision has made him confident about the future of THC isomers in Texas.

“This is huge for us,” Gilkey said. “This was literally – in my opinion and some of the attorneys have mentioned it – the best chance that Texas had at winning this case was taking it to the Supreme Court. And they just ruled in our favor.”