Did Delta-8 Just Get Canceled?

What the Texas Department of State Health Services update on Delta-8 THC means for Delta-8 products.

On October 15, 2021 the Texas Department of State Health Services (DSHS) posted an update on their website concerning Delta-8 Tetrahydrocannabinol (Delta-8, Delta-8 THC).  The update included in part, “all other forms of THC, including Delta-8 in any concentration and Delta-9 exceeding 0.3%, are considered Schedule I Controlled Substances.”  Perhaps the first thing to be noted is that DSHS is not the Texas Legislature.  Therefore, this is not a new law.  What this purports to be is an application of existing law to the “novel” Delta-8 THC issue.

This application of the law is made by a State Agency with some authority regarding health issues that would include medicines and drugs.   It might be that police agencies and prosecutors’ offices would begin prosecuting persons and businesses based on the Department of State Health Services proclamation.  The announcement has already sent merchants who sell Delta-8 to their attorneys to protect themselves and possibly their livelihood.  In that DSHS is not a lawmaking body, the question is, “are they right?”

DSHS has declared that “all forms of THC . . . are Schedule One Controlled Substances” and they have included Delta-8 specifically.  It is illegal to possess a Schedule One Controlled Substance with few exceptions.  In fact, even the smallest amount of a Schedule One Controlled Substance is a felony punishable by not less than 180 days in a State Jail Facility and not more than 2 years.  So, are all forms of Tetrahydrocannabinol already illegal in this State.  A list of Schedule One Controlled Substances should answer this question.  However, Schedule One only lists the characteristics of substances that should be in Schedule One it does not list any specific substances. The Penalty Groups created to set punishments for violations of the Controlled Substances Act are the reference for what is illegal.  Regarding THC, Penalty Group Two is the authority.

Health and Safety Code

Sec. 481.103.  PENALTY GROUP 2.

(a)  Penalty Group 2 consists of:

(1)  any quantity of the following hallucinogenic substances, their salts, isomers, and salts of isomers, unless specifically excepted, if the existence of these salts, isomers, and salts of isomers is possible within the specific chemical designation: . . .(omitted for space)

Dronabinol (synthetic) in sesame oil and encapsulated in a soft gelatin capsule in a U.S. Food and Drug Administration approved drug product (some trade or other names for Dronabinol:  (a6aR-trans)-6a,7,8,10a-tetrahydro- 6,6, 9- trimethyl-3-pentyl-6H- dibenzo [b,d]pyran-1-ol or (-)-delta-9- (trans)- tetrahydrocannabinol);

Ethylamine Analog of Phencyclidine (some trade or other names:  N-ethyl-1-phenylcyclohexylamine, (1- phenylcyclohexyl) ethylamine, N-(1-phenylcyclohexyl) ethylamine, cyclohexamine, PCE); . . . (omitted for space)

Tetrahydrocannabinols, other than marihuana, and synthetic equivalents of the substances contained in the plant, or in the resinous extractives of Cannabis, or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity such as:

delta-1 cis or trans tetrahydrocannabinol, and their optical isomers;

delta-6 cis or trans tetrahydrocannabinol, and their optical isomers;

delta-3, 4 cis or trans tetrahydrocannabinol, and its optical isomers; or

compounds of these structures, regardless of numerical designation of atomic positions, since nomenclature of these substances is not internationally standardized;

As you can see from the Paragraph above, Penalty Group Two does list Tetrahydrocannabinols as punishable substances.  It would seem, from a plain reading of the statute, that Delta-8 Tetrahydrocannabinol, being a Tetrahydrocannabinol, would be included under the punishment for possession of a Penalty Group Two Substance.  The Department of State Health Services appears to be correct in their assertion that Delta-8 is already illegal.

What does this mean?  As of this writing there is already one major lawsuit on file in Travis County challenging the idea that Delta-8 is illegal.  Lawyers and Judges will be weighing in and the Justice System will come to a conclusion.  Based on the Texas Controlled Substances Act, the outcome should be obvious to all who can read Penalty Group Two.  However, post Marbury vs. Madison, anything can happen.