Delta-8 gummies and drinks sold at gas stations and smoke shops across Texas are set to be treated by state health officials as Schedule I controlled substances, the same category that includes heroin and LSD. But with the change taking effect Thursday evening, it remains unclear what that means for stores and consumers.
The transition is scheduled for May 28 at 5 p.m. That's when a Texas Supreme Court decision is scheduled to take effect that dissolves a lower court's 2021 injunction, which had allowed Delta-8 products to remain widely available statewide for nearly five years.
When that happens, the Texas Department of State Health Services (DSHS) could again rely on its 2021 position that manufactured Delta-8 is illegal under the state's controlled substances schedule.
"We've asked DSHS for guidance and we haven't gotten it," said Cynthia Cabrera, chief strategy officer for Hometown Hero, an Austin-based retailer of cannabis products. Hometown Hero's parent company, Sky Marketing, is the lead plaintiff in the Delta-8 lawsuit.
Cabrera said the company's legal team believes Delta-8 products don't automatically become Schedule I when the injunction is stayed. Instead, she said, the company is waiting to see whether DSHS announces additional action.
"They've not responded with anything concrete or anything tangible, and they've not sent out any notices," Cabrera said. "I'm signed up to the DSHS alerts. There hasn't been anything there."
A DSHS spokesperson said the agency was waiting for a few legal proceedings to wrap up before making any moves. The Texas Supreme Court allowed plaintiffs until June 17 to make legal arguments about why they think the court should reconsider its decision. But the temporary injunction still expires Thursday at 5 p.m.
"DSHS is waiting for those things to happen before determining what the next steps will be for the agency," spokesperson Lara Anton said.
Delta-8 is generally considered less powerful than Delta-9, the main psychoactive ingredient in cannabis, and is sometimes nicknamed "diet weed." The compound occurs naturally in cannabis in very small amounts.
Virtually all commercial Delta-8 products are made by converting hemp-derived CBD, a non-psychoactive cannabinoid, using a chemical process.
The Texas Supreme Court zeroed in on that distinction, drawing a line between "the naturally occuring hemp plant and a final consumable product containing levels of THC that substantially exceed those naturally existing in any hemp plant." Hemp is a legal term to describe cannabis with no more than 0.3% Delta-9 THC.
"We must reject the contention that the 2019 Texas Farm Bill itself decontrolled anything more than the exceedingly trace amounts of delta-8 THC that naturally occur in hemp," Justice Evan Young wrote in the opinion delivered May 1. "Holding otherwise would require us to accept the doubtful premise that the legislature decontrols potent substances (here, THC and marijuana extract) casually or by implication."
The ruling doesn't directly decide the legality of naturally occurring cannabis compounds or their extracts, including Delta-9 THC and THCA, which converts to Delta-9 when heated or smoked. A separate legal case over the state's authority to restrict the sale of those products is winding its way through Texas courts.
DSHS doesn't prosecute drug cases. The Texas Supreme Court noted that criminal enforcement of controlled-substance laws is handled by law enforcement and prosecutors, not the health agency.
Drug policy experts say that means the practical effect could depend on how local police interpret the state's controlled-substance schedule and whether prosecutors decide to pursue cases.
"I think for consumers, the legal concerns will vary depending on where you live," said Katharine Harris, a fellow in drug policy at Rice University's Baker Institute. "If you live in a jurisdiction that wants to crack down on Delta-8, on hemp products, on marijuana, then I think that you probably do need to be a bit more concerned."
The Austin Police Department told KUT News that possession of Delta-8 would fall under its general order for misdemeanor marijuana possession. That policy generally directs officers to seize marijuana, write a report and release the person if possession is the only charge, unless the case is connected to a high-priority felony narcotics investigation or a violent felony.
APD has told KUT News that those found in possession of legal hemp products, including flower and concentrates, can keep them by showing the product packaging to the police officer.
Harris said having police departments across the state enforce the law differently creates a problematic "patchwork policy."
"It can fundamentally just sort of be unfair in terms of who gets punished for what," Harris said. "I would say that at minimum law enforcement should exercise caution arresting people who are buying stuff at stores that are licensed by the state."
For now, many stores and consumers are waiting for word from DSHS. The agency could issue guidance or take action against retailers after the injunction is stayed.
The lawsuit itself is not over. The Texas Supreme Court overturned the temporary injunction that had blocked DSHS's position, but it also said the underlying case could continue in the lower courts.
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