Is Delta 8 Legal in Texas? [2022 Update]

Is Delta 8 Legal in Texas? [2022 Update]

Posted by Christian on 26th Apr 2023

Is Delta 8 Legal in Texas?

The emergence of delta 8 is the story of the U.S. hemp industry – and it came totally unexpected! The THC alternative is attracting those who cannot buy marijuana legally, but its popularity is not without controversy. So, is delta 8 legal in Texas?

Short story: yes, it is, as of July 2022. Longer story: delta 8’s legality in the Lone Star State is under intense scrutiny and the subject of a fierce legal battle between the state government and delta 8 vendors.

In this post, we will look at what’s gone down already, the current situation, and what the future may hold for delta 8 in Texas. But first, what even is delta 8?

What is Delta 8?

What is Delta 8?

Delta-8-tetrahydrocannabinol (delta 8) is a naturally occurring compound found in trace levels in the cannabis plant. Delta 8 is a cannabinoid, and more specifically, it’s a tetrahydrocannabinol and isomer of delta-9-THC (or simply THC).

Delta 8 is significantly less intense than THC, with some research estimating that it is up to 50% weaker. That’s a surprising drop in potency, given that the only chemical difference between them is the location of the double bond in their molecular chains.

Delta 8’s double bond is situated in the 8th carbon chain, while delta 9’s is positioned in the 9th – now you know where their names come from! Studies show that delta 8 works just like THC, as a partial agonist of the CB1 receptor.

Cannabis plants do not produce delta 8 in significant quantities – no plant has ever been found to contain even 1% delta 8. But lab technicians can make copious amounts of delta 8 from natural hemp, using various chemical processes.

For millions of Americans, delta 8 is now their preferred option for relaxing and unwinding. Delta 8 has a well-established reputation for its uplifting sensations, cerebral effects, and soothing qualities. And folks can’t get enough.

Is Delta 8 Legal in Texas?

But delta 8’s emergence is undeniably fortuitous, and the cannabinoid exists in legal limbo, not least in the state of Texas. Right now, delta 8 is legal at the federal and state levels. But why is delta 8 legal in Texas?

Federal law

It all started with the federal government’s decision to legalize industrial hemp. Lawmakers determined that the non-intoxicating Cannabis Sativa L. plant had too many benefits to ignore and drew up a legalization plan in the 2018 Farm Bill.

The legislators wanted to make the likes of CBD oil legal while ensuring that recreational cannabis products remained prohibited. And they assumed that capping the concentration of THC in hemp products at 0.3% would achieve this.

But even the best-laid plans can backfire, and lawmakers clearly overlooked delta 8 and other THC-like cannabinoids. The Farm Bill legalized all hemp-derived cannabinoids, only placing limitations on THC.

Consequently, delta 8 became federally legal, and manufacturers could start making products with unlimited amounts of it. And even if delta 8 is only half the strength of THC, companies can compensate by infusing twice as much delta 8 into products.

Federal law

State law

Shortly after the 2018 Farm Bill passed in Washington D.C., Texas approved almost identical legislation. Texas House Bill 1325 defines hemp in the same way as the Farm Bill, therefore legalizing hemp-derived delta 8.

Cannabis-derived delta 8 is still illegal, despite being the same substance. Delta 8 products with more than 0.3% THC fall into the Controlled Substances Act’s most restrictive Schedule 1 drug category – this is true in Texas and at the federal level.

The Recent History of Delta 8 in Texas

At first, the possibility of legal delta 8 products protected by the Farm Bill went unnoticed. But as soon as one brand tried it, several others jumped on the bandwagon. Before long, delta 8 was everywhere, including in the Lone Star State.

People quickly picked up on the fact that a legal version of cannabis was circulating in Texas. The mainstream media amplified the delta 8 buzz, and this once-unknown cannabinoid soon caught the attention of the state’s anti-cannabis lawmakers.

House Bill 2593

Delta 8 could easily have been banned in Texas with House Bill 2593. The bill was filed in March 2021 and read for the first time in the Texas House of Representatives later that month. But at time, it had nothing to do with delta 8!

At first, HB 2593 was about reducing criminal penalties for marijuana possession. However, a late-stage amendment to the bill in the Texas Senate threatened to destroy the delta 8 industry by changing the state’s definition of hemp.

Instead of limiting hemp products to 0.3% delta-9-THC, HB 2593 planned to restrict the sum of all tetrahydrocannabinols to 0.3%. This would have impacted delta 8, delta 10, and likely hexahydrocannabinol (HHC), too.

The House of Representatives rejected this outrageous amendment, as the bill died in the Texas Senate in May 2021. Ultimately, it was sad to see a promising piece of legislation sabotaged, as we can all agree on lowering penalties for pot possession.

Department of Social and Health Services ban

Department of Social and Health Services ban

The underhand bid to ban delta 8 put the Texas market on notice. However, few could have foreseen the Texas Department of Social and Health Services’ (DSHS) brazen effort to make delta 8 illegal in October 2021.

Anyone asking, “Is delta 8 THC legal in Texas?” at that time would have been answered with a resounding no from the DSHS. Incredibly, the state agency updated its website without warning to declare delta 8 a Schedule 1 controlled substance.

The move shocked the hemp industry. HB 1325 had legalized delta 8 in Texas just two years earlier. Vendors anticipated that any attempt to criminalize delta 8 would have to go through the appropriate legal channels.

But then something remarkable happened, which should give hope to companies selling delta 8 products throughout the U.S. – Texans fought back!

Ongoing legal battle

Of course, at first, worried vendors had to take products off the shelves. Overnight, they had gone from selling a legal substance to a Schedule 1 drug. A few brave companies continued stocking products, but some were raided by police.

The resistance started with Hometown Hero, a Texas-based hemp company. They, along with some like-minded businesses, attempted to put a temporary restraining order on the delta 8 ban by suing the state. A district judge denied the request.

However, the bid for a temporary injunction on the ban was granted by the 126th District Court in Travis County, Texas, in November 2021. 

Hometown Hero had achieved its first victory against the DSHS. Delta 8 was legal again in Texas, with an assurance the injunction would last until the case reached its conclusion. Emboldened companies were soon back selling delta 8 products.

In December 2021, the DSHS attempted to get a hearing at the Texas Supreme Court. The request was denied, which meant that the case could stay in the Texas Appellate Court for up to a year.

The Hometown Hero v. Texas DSHS case was scheduled to take place in January 2022 but was canceled. As of July 2022, the case has still not been heard, and nor has a date been set – it might not happen until as late as July 2023!

Is Delta 8 Legal in Texas Permanently?

Is Delta 8 Legal in Texas Permanently?

Until the case is heard in the Appellate Court, delta 8 will remain legal in Texas – although there is no guarantee that it will stay so forever. Hometown Hero could eventually lose the case, and the tide is turning against delta 8 in many U.S. states.

But the Texas delta 8 industry has proven that it will not go down without a fight. Hometown Hero’s resistance was as unprecedented as the DSHS’ ban attempt, and we can expect further legal challenges if Texas tries criminalizing delta 8 again.

Could the DEA ban delta 8?

However, the federal government and the Drug Enforcement Administration (DEA) could still threaten delta 8’s legality in Texas. Indeed, there is some surprise that the DEA has not already moved to close the legal loophole created by the Farm Bill.

The federal agency appeared to have delta 8 in its sights back in 2020 when it published an interim final rule (IFR) relating to synthetic cannabinoids. Some took the IFR as evidence that the DEA classes delta 8 as synthetic.

But the DEA later clarified its position, stating that THC made synthetically with non-cannabis materials is a controlled substance. Delta 8 is a natural substance, although the cannabinoid is mostly manufactured in laboratories.

Crucially, though, delta 8 is obtained by converting hemp-derived CBD extract. And hemp-derived CBD is most definitely a cannabis material. Most hold the view that the DEA’s comments as a sign that it does not treat delta 8 as a controlled substance.

However, cannabis activists and users are not about to sleep on the DEA, an agency notorious for its long-term hostility toward marijuana. Has the DEA really turned the page and adopted a more pragmatic stance? We will have to wait and see.

Could Texas legalize marijuana?

Could Texas legalize marijuana?

The other possibility is Texas legalizing recreational marijuana, which would scrap all restrictions on cannabinoids. Legalization would likely make delta 8 an irrelevance again, as users would be able to buy products with unlimited amounts of THC.

Polling shows there is public support for legal weed in Texas, but there isn’t yet the political will to make the change. Compared to other states, Texas does not even have an advanced medicinal marijuana program – so legal pot is a way off.

That said, not every state that has legalized recreational marijuana permits delta 8. Weed is legal in Oregon, but the state banned delta 8 and THC-O products in July 2022. 

Rules on Selling Hemp-Derived Delta 8 Products in Texas

Texas does more to protect consumers purchasing and using delta 8 than some states. Any company selling consumable hemp products in Texas must register with the DSHS. The agency can conduct purity and legality checks at its discretion.

In this case, the DSHS is acting ethically and responsibly. With no FDA regulation of delta 8 products, it provides much-needed assurances that delta 8 products in Texas are not contaminated with heavy metals, solvents, or other harmful byproducts.

Delta 8 Near Me: Why You Should Buy Products Online

Continuing with the safety theme, I recommend buying delta 8 products from a respected online retailer rather than from a random brick-and-mortar shop. 

Gas stations, headshops, and similar stores have a reputation for selling delta 8 products of questionable quality. These stores often fail to provide third-party lab reports with products, leaving you clueless about whether they are safe and legit.

Specialist and reputable online stores do not have such a lax attitude. And if an internet-based vendor fails to produce the relevant lab reports, you can find another store that will within seconds.

That convenience extends to acquiring suitable products. If a delta 8 product exists, you will find it on the web. But you could spend hours trekking around your local town or city looking for something to no avail.

And lastly, there is the price. Online vendors can always undercut their brick-and-mortar rivals, saving you several dollars with every purchase. That’s the advantage of running a slimmed-down, web-based operation!

Buy Delta 8 Products From CBD Genesis!

Buy Delta 8 Products From CBD Genesis!

Well done for getting this far! The delta 8 saga in Texas is crazy, but you now have a definitive answer to the question, “How is delta 8 legal in Texas?”

Do you live in the Lone Star State? If so, now is the perfect time to try the cannabinoid that has caused such a stir! And we have plenty of premium delta 8 options here at CBD Genesis. Get stuck in with a Delta 8 Disposable or Vape Cartridge from our CBD Genesis collection or satisfy your sweet tooth with some delicious delta 8 gummies