Texas Delta-8 ban explained: What disappears from shelves July 31

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The countdown has begun for Texas businesses selling Delta-8 and other hemp-derived THC products, with some of the state's most popular cannabis alternatives set to disappear from shelves in less than two weeks.

Beginning July 31, the Texas Department of State Health Services (DSHS) will once again classify Delta-8 THC and several other hemp-derived THC isomers as controlled substances after the Texas Supreme Court lifted a yearslong injunction that had prevented the agency from enforcing its 2021 rule.

The change affects products containing cannabinoids such as Delta-8, Delta-10, Delta-6 and THCP, according to DSHS' notice published in the Texas Register. The Texas Hemp Business Council is urging retailers to remove or sell through those products before the rule takes effect.

For many Texans, however, the legal battle over hemp and THC products has created confusion over what is-and is not-allowed under state law. 

"Cannabis" refers to the plant itself, while federal and Texas law draw a legal distinction between marijuana and hemp,  Cynthia Cabrera, president of the Texas Hemp Business Council, told Chron, "which is anything above 0.3% Delta-9 THC, and hemp, which is anything below 0.3% Delta-9 THC." 

Within hemp, she added, there are dozens of naturally occurring cannabinoids, including CBD, Delta-8, Delta-9 and Delta-10.

"Hemp, on the other hand, was made federally legal via the 2018 Farm Bill, and Texas adopted the same legality in 2019," Cabrera said.

That legal framework changed in 2021, however, when DSHS attempted to classify Delta-8 and similar cannabinoids as controlled substances. A Travis County judge temporarily blocked enforcement while litigation moved through the courts.

Earlier this year, the Texas Supreme Court reversed that injunction, allowing DSHS to reinstate the definitions. The agency formally republished the rule in the Texas Register on July 10, setting July 31 as the effective date.

"Texas has a love affair with Texas hemp, Texas's legislature hates Texas hemp," Cabrera noted. 

For businesses, she also said the biggest challenge is not simply removing products from shelves-it's understanding how the rule will actually be enforced.

"How would law enforcement answer the question of trace amounts?" Cabrera said. "DSHS says that they are not the enforcement mechanism."

She argued the agency has created uncertainty for retailers and police alike.

"They've wiped their hands, and now it's law enforcement's problem," Cabrera said. "Law enforcement will have a very difficult time enforcing anything because there are not clear definitions for anything."

Questions also remain about ongoing litigation. 

Cabrera said she is aware of at least two active lawsuits challenging Texas hemp regulations, with additional legal challenges currently being prepared.

Businesses should continue reviewing inventory and certificates of analysis before accepting products from suppliers, she said, noting that while bad actors exist in any industry, retailers should verify products comply with state requirements.

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