What is Delta 8 and is it Legal in Texas?

Unlike marijuana and THC where possession and trafficking is illegal under Texas Law, Delta 8 is legal to use in Texas including Houston. This is because it’s extracted from hemp-derived CBD, which is legal to farm across the United States. Despite this, the product remains in legal flux because the Agriculture and Nutrition Improvement Act of 2018 (the federal “Farm Bill”) does not explicitly mention Delta 8.

Why is Delta 8 Legal?

Cannabis plants are classified as either marijuana or hemp, depending on their level of tetrahydrocannabinol, or THC. Hemp contains less than 0.3% THC and marijuana contains more than 0.3% THC. In 2018, hemp production was legalized under the federal Farm Bill, but marijuana remains a federally illegal controlled substance. In 2019, Texas passed House Bill 1325, which legalized growing hemp here at the concentration mentioned above.

What is Delta 8?

Delta-8-tetrahydrocannabinol or Delta 8 is a substance found naturally occurring in hemp and cannabis in low quantities. Delta 8 is not naturally produced in abundant quantities in hemp plants, though, requiring manufacturers to convert CBD into Delta-8.

Since it is a hemp byproduct, those in the industry and consumers assumed it would fall under the federal Farm Bill which legalized hemp. It does, importantly, have less than 0.3% THC, which would seem to make it legal also under Texas’s 2019 House Bill 1325.

The Future of Delta 8 Legality

Delta 8 was stealth banned last January by the Texas government without informing consumers or those involved in the cannabis industry. It was quietly declared to be a Schedule I Controlled Substance without a public hearing or information provided in advance about the potential change in its status.

A Travis County judge subsequently blocked the State of Texas from classifying Delta-8 as a controlled substance. The Texas Department of State Health Services (DSHS) requested that the Texas Supreme Court hear the case and that request was denied. A final trial on the matter is set for this month in Hometown Hero vs DSHS. So far, the Texas Department of Public Safety, our state’s law enforcement agency, has yet to make one arrest. So, for now, Delta-8 is legal in Texas, but the drug crime attorneys at J.D. Silva will be sure to watch court proceedings this month to see how the appellate decision plays out.