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The patchwork of what is considered legal hemp in Texas became narrower Friday when the state’s classification of manufactured Delta-8 and similar THC substances as controlled substances took effect.
Possessing, manufacturing or delivering products containing manufactured Delta-8, Delta-10 and similar THC compounds can now lead to felony charges.
Consumable hemp products that otherwise comply with state law may still contain no more than 0.3% Delta-9 THC by dry weight.
The legal status of Delta-8 and similar substances had been tied up in court for years. On May 1, the Texas Supreme Court ruled that the state health commissioner had the authority to classify manufactured Delta-8 and similar THC substances as controlled substances, clearing the way for the classification to take effect July 31.
In San Antonio and Bexar County, police and prosecutors said they would enforce the change.
“The San Antonio Police Department will follow Texas law and will enforce the reclassification of Delta-8, Delta-10 and other hemp derived cannabinoids as Scheduled 1 controlled substances,” a spokesperson for SAPD said via email.
The Bexar County District Attorney’s Office said it would review and potentially prosecute cases referred to its office.
“Pursuant to our oath to enforce the laws of the State of Texas, we will continue to prosecute any possession, sale, or delivery of any controlled substance that our legislature has identified as illegal,” a spokesperson for the Bexar County DA said in a statement. “As always, we will conduct thorough reviews of each case, guided by the established legal framework and the results provided by crime laboratories certified by the Texas State Forensic Science Commission. Our commitment to enforcing the law remains steadfast, and we will continue to approach our responsibilities with diligence and integrity.”
The Texas Hemp Business Council said the new classification applies only under Texas law and criticized the state’s decision.
“The new schedule is effective only in Texas. This is not active at the federal level,” the group said in a statement.
“It’s unfortunate our state decided to take a step back from progress. These cannabinoids were added to a list of substances that supposedly contain ‘no medical value’, which we know is not true,” the group said.
Penalties for possessing, manufacturing or delivering controlled substances vary based on the substance, its penalty group and the amount involved. Possession of small amounts of marijuana remains a misdemeanor.
In 2018, the federal Farm Bill allowed for the production of hemp with a Delta-9 THC concentration of no more than 0.3% by dry weight. The law defined hemp based on its Delta-9 THC concentration, which some business owners argued allowed products containing manufactured Delta-8 THC.
Texas House Bill 1325 in 2019 effectively legalized hemp sales in Texas, but only if the Delta-9 THC concentration was no more than 0.3% by dry weight, much like the federal Farm Bill.
According to the Texas Supreme Court ruling, manufacturers and business owners believed the state and federal laws allowed products containing higher concentrations of manufactured Delta-8 THC.
In 2021, however, the Texas Department of State Health Services classified manufactured Delta-8 and similar THC substances as Schedule I controlled substances. Hemp businesses sued, and a lower court temporarily blocked enforcement.
The Texas Supreme Court ultimately sided with the state.
In its May ruling, the majority opinion said the DSHS commissioner has the authority to clarify the state’s controlled-substance schedule. The court said lawmakers could change the law if they wanted to legalize the products.
“If the legislature desires to legalize powerful drugs, it has every tool it needs to do so—and to do so unmistakably, as we expect for such a major change to social policy. The role of the courts is merely to assess the state of the law as it is,” Justice Evan Young said in the opinion.
