As we pointed out in Cannabis Courtroom, Texas has, for now, failed in its attempt to make Delta-8 products illegal. But we’d be remiss if we didn’t remind readers that the controversy over Delta-8 continues, and future legal challenges can be expected. So why is Delta-8 so polarizing, and what do retailers of the substance have to be aware of?
For starters, realize that Delta-8 has always had a tenuous claim to legality. The 2018 Farm Bill legalized hemp products containing less than 0.3% of Delta-9 THC, using this specific language. Delta-8 THC is a close relative, considered an isomer of Delta-9 with a similar molecular structure yet a clear difference on its molecular chain. In practical usage, Delta-8 acts like a middle ground between “full-strength” Delta-9 THC and non-intoxicating CBD: it potentially reduces pain and aids in sleep while providing a low-to-moderate high.
However, this leads to a grey area depending how each individual state interprets the law. First off, some Delta-8 products can also contain Delta-9 THC, which makes it imperative that both producers and retailers ensure that they do not cross the 0.3% traditional THC threshold.
Second, producers and retailers need to avoid the eleven states that have chosen not to mirror the same language of the Farm Bill in their own laws. And some of these states have legalized adult-use cannabis, making their Delta-8 statuses easy to overlook. The eleven states are: Alaska, Arizona, Arkansas, Colorado, Delaware, Idaho, Iowa, Mississippi, Montana, Rhode Island, and Utah. What’s more, legislative bans are being considered in other states.
For now in Texas, Delta-8 products are back on the shelves at such retailers as 75-store chain Vape City. And the retail industry is now on watch for any future state shenanigans; the Texas Tribune reported that the only notifications of the public hearing to change Delta-8 policy were created by the Department of State Health Services as non-searchable images, not text, so they would not be discovered by search engines and automatic news alerts — good reason why no opposition showed up at the single hearing.
So it’s wise to recognize that while hemp-derived Delta-8 is a profitable business opportunity, offering beneficial effects to consumers, it is not free from risk. Texas law is not yet settled, and other states considering Delta-8 bans are closely monitoring the Texas litigation. KannaKnowledge will keep you informed whether the presiding judge chooses to make the Texas temporary restraining order permanent, or whether the matter will go to a full trial.