"We got the injunction. We are good to go," Lukas Gilkey, founder and CEO of Hometown Hero, said in a YouTube video Monday morning. "You are free to sell delta-8 in Texas as of right now."
Hemp companies, like Hometown Hero, as well as consumers, believed that under state and federal law they could make and consume any hemp-derived THC isomers, as long as they don't have more than 0.3% delta-9 THC. Delta-9 is the primary psychoactive ingredient in weed.
But last month, the Texas Department of State Health Services (DSHS) added a statement to its website saying that all THC isomers in any concentration, including the popular delta-8 version of THC, were Schedule 1 controlled substances. (Isomers are chemical compounds that share a chemical formula but whose arrangement of atoms differ.)
This sent the hemp industry into a panic. Stores pulled products off shelves, and consumers tried to stock up on what had become felonious contraband. Some turned to selling what they say are legal delta-9 products that have psychoactive effects but still fall under 0.3% on a dry weight basis.
Hometown Hero was one of the first companies in Texas to take legal action against DSHS over its ban on THC isomers. They say the state didn’t take proper steps to make this change, and there wasn’t proper notice. The company argued in court on Oct. 25 against the state’s move, hoping a judge would grant a temporary restraining order on the ban. That temporary restraining order was denied, and a hearing for a temporary injunction on the ban was set for Friday.
Attorneys on both sides spent a lot of time discussing the state and federal definition of hemp, but the hearing wasn’t about definitions. It was about the process DSHS used to make this change and whether it was proper.
This all started in August when the U.S. Drug Enforcement Agency updated its list of controlled substances so it was in line with the 2018 Farm Bill.“All of the Texas Register is text-searchable, except in one specific and odd instance." – Jay Maguire, Texas Hemp Federation
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When the DEA “designates, reschedules, or deletes” a substance from the list, this triggers the state’s ability to choose whether to adopt those changes. In Texas, this decision is up to the DSHS commissioner, John Hellerstedt.
But, attorneys for Hometown Hero argue that the DEA didn’t designate, reschedule or delete anything. They say that the DEA was just “conforming” the list to be in line with federal hemp laws, so the state was never triggered to adopt or object to the changes.
Even if the state was triggered to make an objection, Hometown Hero and other hemp companies argue they weren’t given proper notice or a proper hearing on the change.
Last September, DSHS posted a notice online for the hearing regarding changes to the Texas list of controlled substances. It was titled “Objection to Implementing DEA Rule Changes.” No one showed up to the hearing or sent in public comments.
Jay Maguire, executive director of the Texas Hemp Federation, said he monitors the state’s register for changes in hemp laws. He said most people, especially during the COVID-19 pandemic, use the Texas Register website, instead of a hard copy.
Included on the website are text-searchable PDFs. This allows Maguire and others to search key terms relevant to the hemp industry to keep up with changing laws.
“All of the Texas Register is text-searchable, except in one specific and odd instance,” Maguire said. That “odd instance” was the state’s notice of objection to the DEA controlled substances list. If the notice of the change and hearing were text-searchable, Maguire said he and many others would have shown up to the hearing or sent in public comments against the change.
But they didn't know about it, and DSHS made the change to the state's controlled substances list regardless. Specifically, DSHS amended the entries for THC and "marihuana extract" to include THC isomers like delta-8.
After about three hours, the hearing was adjourned. Hometown Hero and other companies and delta-8 consumers would have to wait the weekend for a decision. On Monday they found out the temporary injunction was granted. This means that, until there's a full trial, the state must revert back to how it handled THC isomers before the change was made.
The court order said DSHS "shall remove from its currently published Schedule of Controlled Substances the most recent modifications of the following terms 'Tetrahydrocannabinols' and 'marijuana extract' and any subsequent publications of the same (if any) until further order of this court."
"The fight isn't over. We still need your help," Gilkey said. "We are expecting the state to appeal this immediately, but it shouldn't change anything, and we should be able to keep proceeding forward."
Several companies and organizations are supporting Hometown Hero in its lawsuit against DSHS, including Bayou City Hemp.
Ben Meggs, CEO of both Bayou City Hemp and Third Coast Blends, said in an emailed statement: "This is a strong first step in reaffirming the fact that Delta-8 is a legal cannabinoid in Texas, and it would not have been possible without the efforts of Hometown Hero and Vape City’s bold, swift efforts."
Meggs added, "With that said, this is a temporary injunction, and we will continue supporting Hometown Hero in this battle so there’s no confusion or gray area on delta-8."
