Texans’ access to a variety of hemp-derived THC products will significantly narrow on Friday, following a new ruling from the Texas Supreme Court. This decision will have lasting implications for both consumers and businesses across the state.
Texas will ban several hemp-derived THC cannabis products, specifically targeting those containing delta-8 and delta-10 THC variants. This ban will impose penalties for possession, including potential jail time and fines. However, delta-9 THC, the most widely sold THC product in Texas, will remain legal under the new regulations.
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This latest development is a significant setback for Texas’s hemp industry, which has faced uncertainty in recent months amidst a flurry of legal actions that have repeatedly altered the market landscape. The recent change comes on the heels of a Texas Supreme Court decision made in May which allowed the Texas Department of State Health Services (DSHS) to classify all hemp-derived THC products, excluding low-dose delta-9 THC, as schedule I drugs. This reclassification effectively prohibits their possession and sale in the state, reversing a 2021 injunction that had previously allowed these products to be sold.
Cannabis experts warn that the ban could remove over half of the THC products from some retailers’ shelves. “It’s a pretty big blow, and it’s recriminalizing a lot of cannabis products that have been completely legal and allowable in the state for many years, so we’re taking steps backwards toward prohibition,” stated Sarah Todd, a media representative at the Texas Cannabis Policy Center.
What is banned?
The ban encompasses all synthetically created THC variants, including delta-8, delta-10, THCP, and THCA flower, marking a notable shift in the legal landscape. The notable exception is delta-9 products that contain less than 0.3% THC by dry weight, which will remain available to consumers.
Delta-8 and delta-10 typically provide a milder high, appealing to certain consumers. Joao Mitchell, manager of ATX Organics and legislative director of Texas Cannabis Collective, explained that delta-9, which is naturally derived from cannabis, is the only THC option allowed for Texas consumers due to its definition under the federal 2018 Farm Bill, which classifies hemp as cannabis containing no more than 0.3% delta-9 THC.
Can Texans still find intoxicating THC?
Yes, Texans can still purchase intoxicating products, provided they contain legal amounts of delta-9 THC. This includes a variety of edibles, beverages, and tinctures. A statewide ban on the sale of smokable hemp was previously set to take effect on March 31 but has been paused due to a court ruling, maintaining availability of delta-9 smokable hemp for consumers.
Additionally, Texas has already banned the sale of vape pens containing THC in the last legislative session, further altering the landscape of THC availability in the state.
Why is this happening?
The recent ban stems from a Texas Supreme Court ruling that permits the state to enforce a 2021 DSHS rule classifying delta-8 THC and other synthetic hemp-derived variants as schedule I controlled substances. In 2021, a lawsuit was filed by Austin-based hemp retailer Hometown Hero and other businesses, arguing that the state was overstepping its authority and contradicting the 2019 Texas Farm Bill, which excluded hemp from the definition of marijuana.
DSHS contended that hemp-derived THC products should be categorized as controlled substances due to their psychoactive effects. Over the years, some lawmakers have attempted to ban all THC products out of concern for their impact on children. Data from the Texas Poison Center Network indicated a sharp rise in cannabis-related poisoning calls from 923 in 2019 to 2,669 in 2022, primarily involving children under five and teenagers.
In Texas, consumers must be at least 21 years old to purchase THC products. “This is a major development for Texas families,” said Aubree Adams, director of Citizens for a Safe and Healthy Texas, regarding the latest restrictions. “It’s about time, Texans need to know that this industry does not sell safe products.”
A temporary injunction had previously blocked the enforcement of DSHS’s 2021 rule while the legal case progressed, allowing businesses to expand their offerings beyond delta-9 products. However, with the Supreme Court’s decision reversing that injunction, the old definitions are set to take effect.
“This is not a good thing for the industry. It’s difficult to understand and lacks clarity,” noted Cynthia Cabrera, chief strategy officer at Hometown Hero. While Hometown Hero does not plan to challenge the state Supreme Court’s decision, two other businesses are reportedly preparing lawsuits.
Adams also advocates for the ultimate banning of delta-9 THC, stating, “We want the sale of these products out of our Texas neighborhoods.”
