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Delta-8 temporarily legal in Texas again after judge grants injunction

A Travis County judge on Monday granted an injunction filed against the Texas Department of State Health Services, temporarily legalizing delta-8 in Texas again.

Delta-8 is a less potent alternative to the delta-9 product known as “marijuana.” Consumers use the product for pain management and mental health treatment, according to testimony given ahead of the judge’s decision, but they can consume it to create a “high” with psychoactive effects similar to those of delta-9 products.

Lukas Gilkey, the businessman who filed the lawsuit against the state health department, published a video update on YouTube on Monday morning. Gilkey is the founder and CEO of Hometown Hero, a company that sells CBD and delta-8 products.

“You are free to sell delta-8 in Texas, as of right now,” Gilkey told his viewers.

Judge Jan Soifer’s ruling was part of the latest legal challenge brought on by the delta-8 debate. The CBD company initially filed for a temporary restraining order on Oct. 21 after the state health department issued a notice on its website Oct. 15 stating that delta-8 products were illegal. The judge denied that initial suit because “the plaintiff has not met requirements of a temporary restraining order,” court documents show.

Gilkey said that while he thought the judge would grant the injunction, he’s still shocked.

“Wow, completely insane,” Gilkey said. “We thought we were going to get it, but now that we’re here, it’s completely crazy.”

Until the clarification appeared on the state’s website in mid-October, consumers and sellers widely believed that delta-8 had been legal since it ramped up in popularity about two years ago. But official state documents show that the state health department listed the product on its controlled substance list in January.

Jay Maguire — a witness during Friday’s hearing — identifies himself as an expert hemp lobbyist but said he didn’t learn of the product’s illegal status until May. During the state’s regular legislative session, lawmakers presented a bill to ban the product but abandoned the effort when Stephen Pahl, an associate health commissioner, informed them it was already illegal, he said.

Some of the widespread confusion stemmed from its federal legal status under the 2018 Farm Bill, which allowed individual states to write more stringent restrictions than federal ones and to diverge from the federal controlled substance schedule.

Many were unaware DSHS Commissioner John Hellerstedt rejected the Drug Enforcement Agency’s modification that legalized delta-8 in September 2020.

Before signing the order in November 2020, the state health department held a public hearing, but no residents commented during the hearing, which Maguire said lasted about seven minutes.

Hellerstedt filed the official order with the Texas Register on Jan. 20. The notice did not explicitly mention delta-8, nor that delta-8 would be added to the drug schedules but stated Hellerstedt “rejected the modifications” to the federal drug schedules.

Maguire believes the state health department should have been clearer and explicitly stated its plans. He said he regularly searches related keywords on the Texas Register website, including hemp and tetrahydrocannabinol, but he explained this was not possible with the commissioner’s notice, because the text was buried in an image file and never appeared in the search.

Other witnesses and industry stakeholders agree that the department’s process was too discrete, and it should have been more accessible — especially during the pandemic, during which people have more heavily relied on technology.