DSHS: Delta-8 is NOT legal in Texas

Possession and sale of Delta-8, THCO, THCP, THCV, HHC, and any other THC isomers in any concentration is illegal in Texas. 

On Friday, Texas Department of State Health Services (DSHS) added the following statement to the top of its hemp licensee page to clarify to the pubic its position that Delta-8 is illegal in Texas:

Texas Health and Safety Code Chapter 443 (HSC 443), established by House Bill 1325 (86th Legislature), allows Consumable Hemp Products in Texas that do not exceed 0.3% Delta-9 tetrahydrocannabinol (THC).  All other forms of THC, including Delta-8 in any concentration and Delta-9 exceeding 0.3%, are considered Schedule I controlled substances. A list of Schedule I controlled substances can be found at the following link: Schedule I Controlled Substances.

Complaints regarding controlled substances should be referred to law enforcement.  DSHS has no regulatory authority over controlled substances. 

If you’re looking in the Controlled Substances List for “delta-8,” you will not find that exact verbiage. Instead, DSHS considers Delta-8, and any THC isomer that is not 0.3% delta-9 THC, to be covered under the definitions of “tetrahydrocannabinols” and “marihuana extract.” So this rule would also apply to cannabinoids like THCO, THCV, THCP, and HHC.

Enforcement falls to police departments, sheriffs, and DPS. And even if your district attorney says they will not prosecute, it does not stop DPS from bringing charges through the State Attorney General. It also doesn’t stop your customers from being arrested in other jurisdictions.

At least six arrests have happened in Texas in the past 90 days for possession of Delta-8. In all cases, they face serious felony possession charges. The first incident to be picked up in the media happened on Oct. 2, 2021. You can read about it here.

This news may come as a shock to many, as it was believed defeating a ban during the state session was all that was needed to prevent this. But as it turns out, DSHS used an alternative method in 2020–well before the session–to amend Texas’ Controlled Substances List to effectively ban delta-8.

We have published a FAQ explaining the timeline and process, along with many other questions and rebuttals we’ve received on this issue.

Despite this clear statement from DSHS, there are several prominent Texas companies and at least one industry association that is in denial, and they are instructing their customers/members that everything is fine. Delta-8 is NOT a “gray area.” If caught with just a cartridge of delta-8, it is an automatic felony possession charge; punishable up to two years in prison and a fine up to $10,000.

Also, if you are convicted of a drug-related felony, you will lose your hemp license(s) and be denied participation in any hemp program for 10 years. 

Texas Hemp Growers opposes any ban on any hemp derivative. We fought this issue hard during the state session. We also thought the issue was settled. We were blind-sided by this revelation, along with many others, when it first came to light in May.

At this point, we can only wait and see if a person or company files a lawsuit challenging DSHS authority on this matter. We’re not confident this is a winning issue in court. Until a judge signs an injunction against DSHS position, these substances are illegal. Take appropriate action to protect your business and your customers.

We have also created a one-sheet Delta-8 Customer Notice that you can download, print and use to explain the situation to your customers. 

Outside of the FAQ and one-sheeter, there’s nothing more Texas Hemp Growers can add to this issue. If you are upset, you might try e-mailing DSHS Commissioner John Hellerstedt to express your disappointment. However, the DSHS commissioner is effectively appointed by the governor. 

We’ll keep you posted if anything new unfolds, particularly if we hear of a lawsuit challenging this issue.