In September, the Texas Department of State Health Services (DSHS) made changes to its list of controlled substances, some of them pertaining to the hemp and THC industry.
A statement on the DSHS website clarified that, according to the updated list, “all THC isomers in any concentration, including the popular delta-8 version of THC, were Schedule 1 controlled substances.” This effectively banned the production and sale of delta-8 products in Texas.
The Austin-based company, Hometown Hero, was one of the first companies to take action against DSHS for the changes. Lukas Gilkey, the founder and CEO of Hometown Hero, filed a lawsuit against DSHS.
According to Fox 4 News, this lawsuit claimed, in part, that the state did not provide enough notice before removing delta-8 from shelves. As reported by the Dallas Express, State District Court Judge Jan Soifer agreed, and on Monday, November 8, granted the temporary injunction.
This temporary injunction would allow delta-8 products to continue to be sold, at least until the rest of the lawsuit could be decided. “We are good to go. You are free to sell Delta-8 in Texas right now,” Gilkey told Fox 4 News.
However, the victory for the plaintiff was short-lived. Two days later, on Wednesday, November 10, the Texas Department of State Health Services filed an appeal, thereby canceling the injunction. This notice of appeal put delta-8 and its products back on the state’s list of Schedule 1 controlled substances.
Cannabis advocate and lawyer Chelsie Spencer stated in a post on LinkedIn that “it is a great time to remind everyone of the terrible appellate rule in Texas that permits the Attorney General’s office the right to automatically suspend a temporary injunction entered by a co-equal branch of government simply by filing a notice of appeal and requesting it.”
“In operation, the rule poses a grave due-process issue, as it places the burden on the plaintiffs to head to the appellate court and argue for reinstatement,” she added in her post. “While this rule remains in place, the state of Texas and its agencies can ignore any injunction covering any subject matter entered by any trial court in the entire state of Texas simply by filing a notice of appeal and invoking the rule.”
According to the Dallas Observer, Spencer clarified her remarks, explaining that things would go back to the way they were before the injunction was ever put into place, making it once again illegal to sell Delta-8 products.
However, Fox News reported some business owners never stopped selling Delta-8 products. Mike Brown, who owns Endo Dispensary in Rowlett, said they never took it off the shelves.
“We weren’t doing anything wrong. We double down. I bought more inventory because I knew people were going to panic and pull it,” Brown said.
According to Brown, Delta-8 products originally brought in around 80% of his business, but this increased during the past month. “Crazy sells,” he told Fox 4. “I can’t even figure out what the increase is.”
Many business owners across Texas believe delta-8 was made legal under the 2018 Federal Farm Bill, which legalized hemp and its by-products nationwide. They say the Texas ruling goes against current federal law regarding the sale and use of the product.
According to the Dallas Observer, Hometown Hero has filed an emergency motion to have the injunction reinstated. A ruling on that motion is expected to take place on or around November 15.
