Jan 28, 2022 - Business

"Purgatory": Austin shops await fate of Delta-8

Illustration of a hand holding a beaker with a green liquid and a marijuana leaf inside
Illustration: Sarah Grillo/Axios

The legal status of Delta-8 THC, the popular cannabis derivative sold in smoke shops and CBD stores across Texas, has been hazy. As of now, though, it's legal.

Context: Delta-8 is the milder cousin of definitely-illegal-in-Texas weed. It's consumed mostly in the form of edibles and vape cartridges.

Why it matters: If Delta-8 THC is criminalized, countless Texans could face felony charges, jail time and fines up to $10,000 for selling or possessing a product that consumers incorrectly believe is legal.

Driving the news: The Texas Department of State Health Services' "Consumable Hemp Program" webpage was updated this month, specifically mentioning that legal products must contain less than 0.3% Delta-9 THC, but it makes no mention of Delta-8.

Zoom in: Austin's own Hometown Hero, a CBD dispensary, has fought the agency's attempt to classify Delta-8 as a Schedule I drug, which effectively made it illegal.

  • The Texas Supreme Court last month denied the state agency's emergency motion to reinstate the ban, allowing Delta-8 to remain legal for now.
  • The ruling sent the case back to the court of appeals, where it could take months to resolve, leaving manufacturers, retailers and consumers anxiously awaiting more clarity from the court.

Delta-8 is legal for now, but the back and forth has had a big impact on local sellers, who say they've been left in the dark.

General manager Samantha Peters of Green Herbal Care, a cannabis shop with three locations in Austin, said the business watched sales of Delta-8 plummet after the state health agency's attempt to classify it as an illegal drug.

  • "I still have people coming in and asking me if it's still banned," Peters said. “Imagine the fear that goes into it, too: repercussions from law enforcement and things like that.
    • "People are actually scared that they could get in big, serious trouble for even having it," she said.
  • Peters added that customers headed to the store to stockpile Delta-8 during the ban. Now, sales of the product have dropped by roughly a quarter.

Context: Delta-8 is naturally occurring and extracted from hemp, which was legalized as part of the 2018 Farm Bill.

  • Legal hemp and products derived from hemp must contain less than 0.3% THC, the psychoactive compound that gives people the euphoric high.
  • Legislation that aimed to ban Delta-8 in Texas failed during the state's most recent legislative session.
  • More than a dozen states have restricted its sale or use.

What's next: Jay Maguire, executive director of the nonprofit Texas Hemp Federation, said he expects the court of appeals to take six to 18 months to make a decision, but the group is confident that Delta-8 will remain legal.

  • "This is unlikely, but what we're not going to face is a situation where some overreaching government agency publishes an obscure note on its website that creates 10,000 felons with the push of a key," Maguire said.
    • "This will be done in the courts. … Everybody will know what's going on," he added.

Yes, but: "It puts us in purgatory," Peters of Green Herbal Care added. "You have to have a lot of patience as a business owner right now."

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