SAN ANTONIO – Is Delta-8 THC on its way out in Texas? And if it is, will other hemp-derived cannabinoids follow behind it?
In the latest series of zigs and zags on hemp regulation, the Texas Supreme Court has paved the way for the Texas Department of State Health Services (DSHS) to ban an alternative form of THC that helped kickstart the state’s $5.5 billion consumable hemp industry.
The 2018 U.S. Farm Bill and the 2019 Texas Farm Bill defined the difference between hemp and marijuana based on its concentration of Delta-9 THC — the form of THC traditionally associated with marijuana. This legal distinction inadvertently opened a loophole for the sale of other cannabinoids like Delta-8 THC, which can also give users a high, leading to a boom in the industry.
However, in October 2021, the Texas Department of State Health Services moved to ban Delta-8, stating on its website that while consumable hemp products must not exceed 0.3% Delta-9 THC, “all other forms of THC, including Delta-8 in any concentration and Delta-9 exceeding 0.3%, are considered Schedule I controlled substances.” This declaration put many businesses in a precarious position.
Hemp businesses responded by suing the DSHS, successfully obtaining a temporary injunction that allowed Delta-8 products to remain available to consumers. However, this legal reprieve was recently overturned by the Texas Supreme Court, which affirmed that the DSHS commissioner possesses “broad authority” to amend the state’s schedules of controlled substances.
Justice Evan Young, in the court’s opinion, clarified that “The legislature has charged the commissioner of the Texas Department of State Health Services with primary responsibility for overseeing the civil schedules of controlled substances.” This ruling suggests that the future of Delta-8 THC—and potentially other cannabinoids—could be at risk.
As of now, the next steps for the DSHS remain uncertain. A spokeswoman mentioned that the agency is still reviewing the implications of the ruling. Meanwhile, the Texas Hemp Business Council, though not directly involved in the lawsuit, is closely monitoring developments. They celebrated a temporary injunction in a separate case that could affect the sale of many smokable hemp products due to changes in how Delta-9 THC levels are calculated.
The landscape for Texas’ hemp industry appears increasingly precarious. Beyond ongoing legal battles surrounding permitted products, tensions between state officials have emerged. In 2025, the lieutenant governor and governor clashed over whether to ban or regulate THC products, and recent crackdowns on THC vapes have added to the uncertainty. Adding to the complexity, a federal ban on intoxicating hemp is set to begin in November.
Jackie Walji, co-owner of Mellow Monkey, expressed her frustration with the regulatory tumult, describing it as “pure chaos.” She noted, “It’s put it on, take it off, put it on again, take off again. And it’s not good for customers’ anxieties. It’s not good for business owners’ anxiety. They need to have a clean cut on what you want us to do so we can follow it.”
