Texas is banning Delta-8 THC and a broad class of similar cannabis compounds starting July 31, removing products that have been sold in smoke shops and gas stations for years.
The ban doesn't affect edibles or drinks made from Delta-9 THC, the main psychoactive compound in cannabis.
But unlike recent rules that restricted the sale of smokable forms of cannabis products but didn't change the law governing possession of hemp flower, this prohibition isn't limited to store shelves.
Austin police say they will treat possession of Delta-8 as a state jail felony, which carries a punishment of 180 days to 2 years behind bars and a fine of up to $10,000.
That's even though possessing small amounts of marijuana is a misdemeanor and, by itself, generally doesn't result in an arrest in Austin.
The strange distinction comes down to how the products are made.
Delta-8 occurs naturally in cannabis, but only in tiny amounts. Nearly all the Delta-8 sold in stores is manufactured by using chemicals to convert CBD, a non-intoxicating compound extracted from hemp.
That manufacturing process was at the center of a lawsuit that kept Delta-8 on Texas shelves for almost five years.
Austin-based Hometown Hero brought the case with other businesses and consumers. They won a temporary injunction in November 2021, blocking the state from treating manufactured Delta-8 as a controlled substance.
In May, the Texas Supreme Court overturned the temporary injunction, allowing the Department of State Health Services to revive the ban. The state's high court said the case could still proceed, but without the order that had stopped enforcement of the state's rules.
At Austin Vape and Smoke on Westgate Boulevard, the change was already visible. Employee Robin Scoville initially thought the store might have one or two Delta-8 products left. But after checking, she couldn't find any.
"It does still have its market of people though," Scoville said. "With Delta-8, I'd say specifically it's a little more mild in comparison, a little less intense [than Delta-9 THC]."
Scoville said the store has been moving toward products made with legal amounts of Delta-9 instead, because it's naturally occuring and doesn't need to be converted from CBD.
"We really try to stay up to date on the information we tell people, because there's misinformation everywhere," Scoville said. "It's just like a tug of war of confusion."
A notice issued by DSHS doesn't list every banned product by name, saying those terms aren't internationally standardized. Instead, the notice describes THCs other than Delta-9 along with "synthetic equivalents of the substances contained in the cannabis plant."
The revived rule places manufactured Delta-8 on the state's Schedule I controlled substances list, alongside narcotics such as heroin and powerful psychedelic drugs like LSD, DMT, MDMA, Peyote and Psilocybin mushrooms.
A co-founder of the company behind the Delta-8 lawsuit believes the new rules are part of an attempt to kill the state's legal cannabis market.
"Their strategy is now to kill us by death by a thousand paper cuts," Hometown Hero CEO Lukas GIlkey said. "I think they've realized a whole ban is highly unlikely, but if they keep taking certain parts of the industry from us at some point, it is just gonna wipe out a lot of the small shops."
More than 14,000 retail locations are registered with the state to sell hemp products, according to a spreadsheet maintained by DSHS. Austin has 974 registered retailers. Travis and the six counties that border it have 1,842. The list includes smoke shops, convenience stores, restaurants, bars and other retailers.
APD didn't say how officers would determine what type of THC is in a gummy, whether arrests are planned or how quickly enforcement would begin. Prosecutors ultimately decide whether to file charges.
That's a shift from what APD told KUT News in May, when the department said Delta-8 fell under its misdemeanor marijuana policy. Under that rule, someone caught with a small amount of marijuana may have the drug confiscated. But they wouldn't be arrested unless the case was tied to a high-priority felony narcotics investigation or a violent felony.
APD still advises people carrying legal hemp products to keep them in their original packaging so officers can see the stated Delta-9 concentration. But packaging won't make a product labeled Delta-8 legal after July 31.
For consumers looking to match the effects of Delta-8 with legal products, Scoville suggested using smaller amounts of Delta-9.
"Micro dosing I would definitely say would be a good option," Scoville said. "They can split a gummy, too, and get half the effect. I'd say it really cuts down on all the negative experiences someone might have."
As to whether Hometown Hero will keep up its expensive legal battle over the Delta-8 rule, Gilkey wasn't sure if he could keep throwing money at what he called a "huge resource drain."
"We aren't going to fight something that we don't think we can win," Gilkey said. "I'm already hearing rumblings that there's other companies in the industry that have already sued or are looking to sue."
"Delta-8 only made up maybe 5% of our total sales," Gilkey said. "We are a Delta-9 company through and through."
Copyright 2026 KUT News