At a Glance:
The Texas Supreme Court ruled Friday that the state can treat manufactured delta-8 THC products as Schedule I controlled substances. The court overturned a years-long injunction secured by Hometown Hero and other hemp businesses, while allowing trace amounts of natural delta-8 in legal hemp. DSHS can now enforce its 2021 rules.
What Are the 2021 DSHS Rules? In 2021, Texas health officials updated the state’s list of controlled substances and stated that manufactured delta-8 THC products — such as gummies, vapes, and edibles with high concentrations — are illegal Schedule I drugs. Only trace amounts of natural delta-8 that occur in legal hemp (under 0.3% delta-9 THC) are allowed.
The Scoop:
The Texas Supreme Court on May 1 ruled in favor of the Texas Department of State Health Services (DSHS), overturning a lower court injunction that had blocked the agency from classifying manufactured delta-8 THC products as Schedule I controlled substances.
The decision in Texas Department of State Health Services v. Sky Marketing Corp., d/b/a Hometown Hero (No. 23-0887) means DSHS can proceed with its 2021 scheduling updates that distinguish between trace natural delta-8 in hemp and high-concentration manufactured versions derived from CBD.
The court held that the commissioner has statutory discretion to address emerging substances like manufactured delta-8 THC. Justice Young wrote the opinion, stating the legislature charged the commissioner with overseeing controlled substance schedules and that courts should not override that authority absent clear legislative direction.
The case originated after DSHS moved in 2021 to clarify that manufactured delta-8 THC falls under Schedule I, following the 2019 Texas Farm Bill that legalized hemp with no more than 0.3% delta-9 THC, as The Dallas Express reported at the time. Hometown Hero and other plaintiffs sued, arguing the agency exceeded its authority and that the 2019 law opened the market for such products. A trial court issued a temporary injunction, upheld by the Third Court of Appeals.
In its opinion, the Texas Supreme Court affirmed the plaintiffs’ standing but reversed the injunction. It noted that naturally occurring trace delta-8 in hemp remains allowed, but manufactured products with higher concentrations converted from CBD do not. The court emphasized that the Texas Controlled Substances Act grants the commissioner discretion to respond to public safety concerns from new substances.
Prior coverage from The Dallas Express documented earlier stages of the dispute. In 2021, the outlet reported on businesses seeking action after DSHS listed delta-8 as illegal and on court rulings that temporarily blocked enforcement.
The ruling has immediate implications for Texas businesses and consumers. Hemp-derived delta-8 products, popular as a milder alternative to marijuana, have been sold widely in the state since the 2019 Farm Bill. Retailers and manufacturers may now face enforcement actions for products exceeding trace natural levels. The decision aligns Texas law more closely with federal interpretations while preserving the hemp exception for low delta-9 THC.
For the nation, particularly Texas, this means state agencies retain the flexibility to regulate synthetic or concentrated cannabinoids without waiting for legislative updates. Texas, a major hemp producer, could see shifts in its multibillion-dollar industry. Businesses must now navigate clearer boundaries between legal hemp and controlled substances, potentially reducing market uncertainty but affecting sales of delta-8 gummies, vapes, and edibles. Other states monitoring hemp policy may take note of the court’s deference to the executive’s scheduling authority.
No immediate comment from Hometown Hero was available in court filings reviewed. The opinion stressed that major policy changes like broader legalization should come from the legislature, not judicial or agency reinterpretation.
