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Delta-8 retailers rejoice after Austin judge grants temporary injunction

Delta-8 can be found on smoke shop shelves again. (Pexels)

Smoke shops are free to sell Delta-8 THC products again, for now, as a temporary injunction on the case has been granted—a victory for retailers.


An Austin judge temporarily removed Delta-8 and other language that restricted THC sales from the Texas list of controlled substances on Monday morning. The battle for Delta-8 legalization is far from over and will have a final trial in early 2022.

Behind the lawsuit to relegalize Delta-8 was Hometown Hero, an Austin-based hemp manufacturer and retailer. Founder Lukas Gilkey shared his excitement Monday morning in a YouTube video announcing the news, though he said he expects the decision to be appealed "immediately."

"We thought we were going to get it but now that we're here, this is crazy," Gilkey said in the video. "Couldn't sleep all last night—it's been a shit show."

The case comes after the Texas Department of Health and Human Services clarified on its website that Delta-8, which produces a similar but weaker high to traditional THC, was still considered illegal in Texas. The shift threw Delta-8 retailers, consumers and manufacturers into a frenzy—Green Herbal Care CBD told Austonia it makes as much as 90% of its revenue on Delta-8—since they've been selling it for over two years.

Austonia followed up with CBD retailer Grassroots Harvest CEO Kemal Whyte after speaking with him on the subject in October. Whyte said he is happy to see lawmakers going through the correct channels but warned other retailers to stay vigilant.

"We are an industry that is used to being constantly trodden on, stigmatized and beaten down, all while our customers are thanking us day and night about how much we've saved their lives," Whyte said. "I think they thought we were going to roll over and didn't realize that we had people like Lukas of Hometown Hero. We had a lot of good people fighting this fight."

Both Gilkey and Whyte took the time to thank the many businesses and agencies that pitched in to help make the suit a reality: Delta Xtracts, Go Ghost Hemp, Vape City, the Texas Hemp Federation and the Texas Veterans of Foreign Wars.

"Start off with kindness. Thank our congressional parties, the people who have influence over the future conversation, thank them for the support," Whyte said. "That will help them recognize that there's a large part of the constituency that wants this to be this way."

A final trial on the merits of Delta-8 will be held on Jan. 28, according to presiding judge Jan Soifer.

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Freaky Floats and other Austin food & drink news
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What's new in Austin food & drink this week:

  • Nau's Enfield Drug closing after losing their lease. Did McGuire Moorman Lambert buy the building, with its vintage soda fountain?
  • Nixta Taqueria Chef Edgar Rico named to Time Magazine's Time 100 Next influencer list, after winning a James Beard Award earlier this year.
  • Question: From what BBQ joint did pescatarian Harry Styles order food this week?
  • Austin Motel is opening the pool and pool bar Wednesday nights in October for Freaky Floats.
  • Vincent's on the Lake closing due to "economic conditions and low water levels [at Lake Travis]."
  • Cenote has closed its Windsor Park location. The East Cesar Chavez location remains open.
  • The Steeping Room on N. Lamar has closed.
  • Local startup It's Skinnyscored new financing for its gluten-free pasta business.
  • P. Terry's opened a new location in Kyle, at 18940 IH-35.