Last month, DSHS effectively banned THC isomers — chemical variations of the substance in marijuana that gets users high — by announcing that these products, including delta-8, were all Schedule 1 controlled substances. Condemnations and lawsuits followed, but in the meantime, some shops are stocking up on delta-9 products they say are legal and still get consumers stoned.
Before DSHS issued its statement on Oct. 15, the consensus was that the delta-8 smokables, edibles and vapes were legal because federal and state law allowed for the sale of products that included less than 0.3% delta-9 THC, the main psychoactive ingredient in pot.
DSHS argued that House Bill 1325 permits only hemp products with less than 0.3% delta-9 THC, while "all other forms of THC, including delta-8 in any concentration" are "considered Schedule I controlled substances." (Neither Texas law nor federal legislation specifically mention delta-8.)
Ben Meggs, cofounder of Bayou City Hemp Co., said the move has sent shockwaves throughout the industry, forcing many smoke shops to remove their delta-8 and other THC isomer products from the shelves. Meanwhile, it's also hit farmers and consumers hard. “It’s a pretty big blow to them when they’ve built so much around this," Meggs said.
It’s been hard for Bayou City Hemp Co., too. The company had delta-8 products it had to take off the shelves, sure. But it also had pure CBD products with trace amounts of naturally occurring delta-8 that can’t be sold now.
“The biggest problem with this is we make full spectrum CBD tinctures all the time. This is pure CBD,” Meggs explained. “Well, naturally in the CBD is delta-8 and it is in detectable amounts. It’s very minute amounts, but it’s detectable. So, now those are no longer legal, even though it’s all naturally derived. It’s extracted from the plant; we’ve not touched anything. It’s just a full spectrum tincture oil.”“It’s moving through word of mouth like wildfire." – Hometown Hero CEO Lukas Gilkey
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But Meggs and Bayou City Hemp Co. pivoted quickly. They've already built what Meggs calls a world-class facility that’s given them the ability to research and develop products around multiple cannabinoids.
“Delta-8 is a part of our business, but we make a lot of other different cannabinoids that don’t fall under THC isomers, which is what DSHS is going after right now,” Meggs said. “The biggest pivot that you’re seeing right now, and we’ve been working on this and creating products with this for quite some time, is delta-9, and it’s under 0.3% on a dry weight basis.”
For example, you could fit 10 milligrams of delta-9 THC in a four gram gummy because the delta-9 content is still only 0.25% of the edible on a dry weight basis.
So, they can make any kind of ingestible product, like a gummy or a water soluble concentrate, that’s potent enough to get consumers high, but still falls below the federal and state limit on delta-9 THC on a dry weight basis.
“They’re hanging their hat on that, and that’s the way it’s written, so we’ll abide by that,” Meggs said. “We’d already been working on this. The demand wasn’t as big. Now, the demand, of course, is growing exponentially, and it will continue to do so.”
The Austin hemp manufacturer Hometown Hero CBD filed suit against the state for making THC isomers Schedule 1 controlled substances. Hometown Hero applied for a temporary restraining order against the state's ban, but last Monday, the company found out the judge denied the TRO. On Nov. 5, a judge will hear arguments for and against a temporary injunction on the THC isomer ban.
The company is posting regular updates on YouTube about its lawsuit against the state. On the day Hometown Hero heard its temporary restraining order was denied, they posted a video advertising a delta-9 gummy giveaway. All customers had to do was pay for shipping and the company would send two free sample gummies with 10 milligrams of delta-9 each. The company also sells cereal bars packed with 300 milligrams of delta-9.
Hometown Hero CEO Lukas Gilkey said as people wait to hear more on the legality of THC isomers in Texas, they’re turning toward legal delta-9. “It’s moving through word of mouth like wildfire,” Gilkey said.
If you get pulled over with one of these products, Gilkey says it won’t be a problem. If tested by law enforcement, Gilkey said the products would still test under the legal limit of delta-9 THC.
But you won't see legal delta-9 like this on flower or in vapes because putting the psychoactive in either would push the product above the legal ratio.
Still, some Texas companies are toying with another cannabinoid called hexahydrocannabinol, or HHC. While it’s not a THC isomer, according to Leafly, some say it has similar psychoactive effects and it can be bought in the Lone Star State.
