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Texas & the Delta-8 Debacle: Will It Stay Legal?

Texas delta-8
Written by Sarah Friedman
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Delta-8 THC sure brings with it a lot of controversy. As different states create legislation that bans the compound, Texas has showcased the growing escalation of the delta-8 battle. Whether Texas keeps delta-8 legal remains to be seen, but for now, the compound has gotten a stay, making Texas one of the first states to fight back against delta-8 prohibition laws.

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What did Texas do?

Texas has been going back and forth on delta-8 THC for a little while now. Last year, HB 2593 was passed through the Texas House of Representatives, which would’ve worked to lower penalties for those caught with cannabis concentrates and extracts. However, when it got to the Senate, a provision was added that would illegalize isomers like delta-8 THC through a ‘total THC’ provision. The House did not accept this revision, and opted for a resolution commission instead of signing off on it. The provision was removed by the House, the bill passed the House again, and then the Senate adjourned before a vote. This killed the bill.

On October 15th, 2021, the Texas state health department posted a notice on its website that any delta-8 products were illegal. This was rebutted by Lukas Gilkey, the CEO of CBD and delta-8 company Hometown Hero, who originally filed for a temporary restraining order against the Texas Department of State Health Services on October 21st.

Travis County judge Jan Soifer granted an injunction – not a restraining order – on Monday, November 8th, making delta-8 at least temporarily legal again in Texas. The reason given in court documents for not granting a restraining order, was that “the plaintiff has not met requirements of a temporary restraining order.” To give an idea of how unexpected getting the injunction was, Gilkey said this after the injunction was granted: “Wow, completely insane… We thought we were going to get it, but now that we’re here, it’s completely crazy.”

Texas cannabis laws

So, how did this happen if the law was never passed? Apparently, back in January of 2021, the health department in Texas added delta-8 THC to its Controlled Substances list, very, very quietly. So quietly that the agency only put up the post about the illegality some nine months later! So undercover of night, that in a May legislative session, upon talk of a new bill to ban the compound, it had to be stated by an associate health commissioner to legislators, that it had already been banned. It should therefore come as no surprise that when the state health department held a public comments session in November 2020, no one knew to come.

What is delta-8 THC?

Delta-8 THC is a naturally occurring cannabinoid of the cannabis plant. It’s predecessor is delta-9 THC, which it differs from chemically only in the placement of a double bond. When delta-9 comes into contact with oxygen, it loses elections (oxidizes) to form the more stable compound of delta-8. This means delta-8 has a longer shelf life since its already the oxidized version of delta-9.

While delta-8 and delta-9 are often associated with the same – or similar – medical benefits, delta-8 is associated with a slightly less intense psychoactive high, less anxiety, and more energy without the standard couch-locking effects of delta-9. Though delta-8 has been known about since the original research in the mid-1900’s, and used in testing for different ailments, it was never brought into the mainstream until the 2018 US Farm Bill.

Though delta-8 is naturally occurring, it only oxidizes from delta-9 at an extremely slow rate. This is problematic when it comes to creating products, because not enough can be produced naturally to use for production. For this reason, delta-8 is synthesized when used for products, either being converted from CBD using chemical solvents, or combined with zinc chloride, although the second method is less precise in terms of how much D8 vs other compounds, is produced.

The takeaway from both is that chemical solvents and zinc chloride are not from the cannabis plant, meaning both of these processes create a ‘synthetic’ by definition. Since this process is a synthetic process, the compounds involved no longer fit under the definition of hemp. Since the products now don’t fit under the definition of hemp, they are not regulated by the 2018 US Farm Bill. More on that in the next section.

Is delta-8 THC technically legal?

First and foremost, the whole reason this debate goes on at all is because of the 2018 Farm Bill, and some confusion (whether natural or instigated) that has formed around it. The 2018 US Farm Bill legalized the production of industrial hemp, and hemp-derived compounds. The legislation even came with a new definition of hemp, which sets it apart from other cannabis plants. The definition states that hemp is defined as:

delta-8 THC in Texas

“…the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol [(D 9 -THC)] concentration of not more than 0.3 percent on a dry weight basis.”

This opened the door for hemp-derived products under the confused notion (whether natural or instigated) that simply taking something out of the hemp plant means its legal if the plant contains no more than .3% delta-9 in dry weight at the beginning. This, of course, undermines the fact that the entire processing procedure and final result must also have no more than .3% delta-9. It also ignores other laws. Like the Federal Analogue Act, which states that the analogue of a Schedule I Controlled Substance (like tetrahydrocannabinols – THC), is also a Controlled Substance, and this goes for synthetics of a Schedule I compound.

And while it should have been understood the whole time, the DEA just reiterated in its recent clarification to Donna C. Yeatman, R.Ph., the executive secretary for the Alabama Board of Pharmacy, that anything made synthetically just doesn’t fall under the definition of hemp, thereby making it regulated under the Federal Analogue Act. The statement goes as follows:

“Thus, D8-THC synthetically produced from non-cannabis materials is controlled under the CSA as a “tetrahydrocannabinol.”” Of course, if it’s controlled as a tetrahydrocannabinol, then its automatically illegal. So basically, if delta-8 could be derived from hemp without any synthetization (actually naturally-occurring), it would be perfectly cool. Since it can’t in big enough quantities for production, the use of synthetization becomes necessary, making the delta-8 we use for products, non-Farm Bill compliant.

What happens next for Texas and delta-8 THC?

It’s really hard to say. Whether unwittingly or not, Texas has now become a focal point in the whole delta-8 battle. In the end, of course, so long as its made synthetically, delta-8 is federally illegal. However, delta-8 is also an exemplary candidate for the ‘no-one-will-do-anything-about-it’ loophole, a loophole that exists because of the lack of ability to police a law. And since popular opinion about legalities seems to be steered by the cannabis industry in this case, delta-8 is being written about very mistakenly.

Does it matter? Also hard to say. Synthetic processes can mean the inclusion of bad chemicals, and since delta-8 isn’t regulated, it means no one is watching to see what’s being used. I’ve said this many times in articles, the regulation of the industry is what’s needed in terms of chemicals and processes that can safely be used. Not prohibition laws.

cannabis regulation

On the other hand, it should be remembered that processes to create extractions and concentrates often use butane and other solvents, but are considered perfectly fine, and are used for products sold in dispensaries all the time. These create no different issues than the current complaints about delta-8 processing. The most important thing to understand in all this, is that delta-8 THC itself is fine, and it is merely talk of processing that creates this debate.

Clearly, the government of Texas wants to illegalize delta-8 THC, possibly from federal pressure to do so. The federal government can’t go after producers or vendors in an organized way since it would cost too much money. After spending over $1 trillion on losing drug wars, and with popular opinion so greatly changing on cannabis, the US federal government no longer has a way to go after it, and no money to do so, or ability to get the masses on board again with rampant smear campaigns. It can only force its will on state governments.

Conclusion

Will Texas keep delta-8 THC legal? Or, will Texas try another sneaky move? Quite possibly the second. Considering that the state health department held a public comments session, which no one attended because no one knew about it, I’d say the state government will go pretty far to get this through. Luckily, there is that other hand, and at this point, there might just be enough attention on the subject, and the shady way Texas attempted to illegalize it, that things could finally start going in the other direction for delta-8.

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DisclaimerHi, I’m a researcher and writer. I’m not a doctor, lawyer, or businessperson. All information in my articles is sourced and referenced, and all opinions stated are mine. I am not giving anyone advise, and though I am more than happy to discuss topics, should someone have a further question or concern, they should seek guidance from a relevant professional.

About the author

Sarah Friedman

I am a US born writer, travelling the world and doing the digital nomad thing.

1 Comment

  • It’s quite ridiculous, considering the federal Farm Bill and the Texas corresponding bill are both pretty damn clear on the issue: As long as it’s hemp derived and <0.3% D9, it's legal. They're intentionally sowing confusion where there shouldn't be any, trying to be pathetically sneaky about it. If the TX legislature wanted it banned, why didn't they just do that in the 2019 bill in the first place? Aside from the fact that they're asking a bunch of stodgy old men to legislate things they don't understand the first thing about.

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