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Cannabis shops to seek legal options after Texas classifies Delta 8 as illegal

"This regulatory agency does not have the authority to determine Texas law," said attorney George Milner.

DALLAS — April Watson was first introduced to hemp as she was researching viable options for her son who has autism. Seven years later, she's opened up one shop and is close to opening another. 

She owns a hemp-infused coffee and tea shop in Bishop Arts appropriately named The Weed Spot. 

"The definition of the word 'weed' is the plant that grows and thrives in places it's not wanted," said Watson.

And not-wanted is the way April feels now when the Texas Department of State Health Services classified Delta 8 as a controlled substance. Delta 8 is a very popular cannabis extract and mainly for its somewhat intoxicating effect. 

Delta 8-THC produces euphoric effects that are closer to but milder than those of Delta 9-THC.

"I suspect they're threading a very fine line," said attorney George Milner of Milner-Finn. He argued and won a huge federal case involving CBD several years ago.

April tells us the Delta 8 products which include vape pens, edibles and oils are between 60% and 70% of her business.

"Probably close to $15,000 dollars a week," she told WFAA.

For now, April says she's taking Delta 8 off the shelves but argues State Health Services has no powers to enforce this new designation. 

"This regulatory agency does not have the authority to determine Texas law. Their opinion would persuasive and might persuade some local D.A.," said Milner. George would advise owners not to sell the product in the event an ambitious aggressive district attorney calls on local police to enforce.

"You start to worry about your business because people depend on us for quality, healthy, and organic, products," said Watson.

Like Watson. multiple sources have told WFAA that many Texas owners in the CBD/THC world are exploring legal options.

WFAA received the following statement from DSHS late Thursday:

"On the DEA’s current list of Controlled Substances, Delta-8 is specifically named as one of the Tetrahydrocannabinols on Schedule I. DSHS has not made any changes to the Controlled Substances schedule related to THC since March 2021. THC was already on Texas’ Schedule I when the Legislature gave scheduling authority to the Commissioner of Health in 1989, and it has remained on Schedule I since that time.

In September 2020, the Commissioner objected to August 2020 DEA rule modifications to the extent that the new language may have allowed for the presence or addition of THCs aside from delta-9 THC. DSHS held a public hearing in October 2020 to allow for public comment in accordance with the law. We did not receive any public comment and the DEA’s rule modifications were not adopted in Texas.

HB 1325 defined consumable hemp products as containing hemp. Both the state and federal definition of hemp allow for .3% or less delta-9 THC. HB 1325 does not address any other isomer of THC.

DSHS has administrative enforcement authority over consumable hemp products. Law enforcement is responsible for investigating violations of the penal code."