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Austin's Delta 8 industry has been turned on its head after Texas health officials clarified that the cannabinoid is on the state list of illegal substances, though it was previously believed to be legal by most retailers, consumers and manufacturers.


After State District Judge Gary Harger denied a request for a temporary restraining order set forth by Hometown Hero CBD on Friday. Hometown Hero CBD is now asking for other retailers to join them in their lawsuit, which they said will cost around $500,000.

House Bill 1325, which was signed in June 2019 by Gov. Greg Abbott, and the Farm Bill, signed into law by former President Donald Trump in 2018, legalized any hemp product containing less than .3% THC. The same bills were thought to have made Delta 8 legal, though the Texas Department of State Health Services added a notice on its website saying it was still a controlled substance as of Friday, Oct. 15.

Both the federal and state governments keep separate lists on what is considered a controlled substance. Marijuana is considered Schedule I, a category reserved for substances with "no currently accepted medical use and a high potential for abuse," both statewide and federally.

Austin-based CBD retailer Grassroots Harvest CEO Kemal Whyte, like many CBD shop retailers, was blindsided by the announcement. Many small businesses rely on Delta 8 for their sales—Green Herbal Care CBD said about 90% of its sales come from Delta 8—and Whyte said he is frustrated by the inconsistencies in the drug scheduling system.

(Grassroots Harvest/Instagram)


Since 87% of Texans support the legalization of marijuana, at least for medical use, per a recent poll, Whyte said he wonders who this legislation is for.

"It's gonna have a massive impact on small businesses—there's just no way around it," Whyte said. "The reality is, we don't want to push out anything bad for our customers, we want this to benefit our customers and to help them. If we can make money while doing it, that's the American dream. What are we doing, whose benefit is this for?"

Delta 8 surged in popularity after the perceived legalization—consumers enjoyed its lower psychotropic potency, decreased anxiety while using it and the peace of mind as a legal way to get high. So in order to protect their products and livelihoods, both Grassroots Harvest and Austin-based manufacturer Hometown Hero CBD are taking legal action.

Whyte said Grassroots Harvest is participating in the suit against DSHS, saying their action is creating negative effects in the market. Meanwhile, a Hometown Hero CBD spokesperson said the company is in the process of filing a temporary restraining order that would pause the ban on Delta-8 in the state of Texas.

Threats against Delta 8 are not new—DSHS lost a lawsuit trying to make "smokable hemp products" illegal last year and Texas lawmakers had been considering a bill that would make Delta 8 illegal, though it was dropped after the clarification was made.

Hometown Hero CBD released a formal statement in response to the DSHS rule.


"I need to be clear—we love Texas, we're just choosing to fight for the will of the people in regards to cannabis in Texas," Hometown Hero CBD CEO Lukas Gilkey said in a statement. "(Texas DSHS) are using backhanded ways to create legislation and go against the will of the people."

Whyte laments the fact that it would be easier legally to "open up a strip club that also sells guns," and said he can't post customer testimonials that mention the benefits of Delta 8 without getting hit with a cease and desist from the Food and Drug Administration. Whyte said he isn't opposed to regulation—far from it—he just wants to see it go through the correct channels.

"The fact that they're stunting our ability to communicate with our clients that want to learn about this, you're preventing us from communicating with them and teaching them, or spreading information that we know," Whyte said. "I think that that in and of itself opens up a lot of questions."

Grassroots Harvest still has Delta 8 products on its shelves for the time being but for how long, Whyte doesn't know.

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