Delta-8 Retailers Scramble as Texas’ Ban Heads to Court: Wild, wild weed – News

When a Travis County judge denied a request for emergency injunctive relief from enforcing Texas’ recently publicized ban on Delta-8 products, Seth Cowan, the manager of ECIG 101, a vape and smoke shop on Anderson Lane, immediately directed his employees to pull the outlawed products from store shelves.

“I don’t plan on selling something if it’ll be considered a federal offense,” Cowan said. The setback is minimal for his shop, where Delta-8 represents only about 10% of sales. But for many of the local retailers that have capitalized on the increasingly popular isomer of THC (the main psychoactive ingredient in marijuana), the ban on Delta-8 – which the state insists has always been illegal in Texas – could be ruinous.

Late this summer, Ross Anderson, chief operating officer of CBD retailer Elevated Wellness Austin, invested $17,000 in Delta-8 gummies to sell in the store. If injunctive relief isn’t granted after a Nov. 5 hearing in Travis County district court, Ross said that investment is going up in flames – literally. He will likely burn the product in order to avoid potential legal repercussions of possessing a Schedule I controlled substance, which could be punishable as a state jail felony with a sentence of between 180 days and 2 years and a fine of up to $10,000. The Texas Department of State Health Ser­vices, which is responsible for classifying controlled substances, has not outlined a disposal program for Delta-8, which is sold in thousands of smoke shops, gas stations, and other stores across the state.

Anderson said Delta-8 accounts for between a quarter and a third of his business’ sales, but he believes he could adapt because the store also sells other cannabinoid CBD products that are legal (for now). He said he couldn’t say the same for new companies, like Delta 8 THC Austin, that sprung up within the last year solely to capitalize on the fad for the product, which users claim produces a high that’s similar to, though weaker than, regular old marijuana (which contains Delta-9 THC). He’s especially outraged that state agencies would allow new businesses, some with names like “Delta 8” written into their incorporation papers, to open this year if DSHS already knew that the substance was illegal. In calls last week to at least a dozen large and midsized Austin retailers, about half were still selling Delta-8 products. (Delta 8 THC Austin declined to answer whether it had pulled Delta-8 products from its shelves or is taking the risk to continue selling.)

“Many of us wouldn’t still be here if not for Delta-8.” – Lukas Gilkey of Hometown Hero

It remains unclear if local and state law enforcement has the will to enforce the state’s ban. Although there are reports of a handful of arrests for possession in the last several months, Lukas Gilkey, CEO of Austin CBD retailer and wholesaler Home­town Hero, said he has yet to see any evidence that those are more than just rumors. In Austin, where City Council decriminalized low-level possession of marijuana last year, risk of enforcement by the Austin Police Department is unlikely. But many retailers aren’t taking the risk to continue selling when state or even federal drug agents could potentially arrest people for possession or sale of Delta-8 as a Schedule I controlled substance – a class of drugs including heroin, cocaine, and meth.

Hometown Hero is challenging the DSHS determination in a lawsuit filed in Travis County, which prompted the Nov. 5 hearing before District Judge Gary Harger, who last week declined Gilkey’s request for a restraining order blocking the rule. According to Gilkey, it’s one of at least four lawsuits that have been filed across the state to challenge Delta-8’s illegality. The Hometown Hero lawsuit hinges on the argument that DSHS insufficiently notified the public of the hearing in which it ruled on the classification of the substance.

If the lawsuits are unsuccessful in blocking enforcement, Gilkey forecasts trouble for the 9,000 people he estimates work in CBD and smoke shops across Texas. “The only reason you know probably 75% of these stores didn’t go out of business during the COVID shutdowns is because they had Delta-8 to sell,” Gilkey said. “Many of us wouldn’t still be here if not for Delta-8.” He also thinks the DSHS classification is nonsensical for the state, which could be taxing the product for additional revenue.

Anderson said the focus shouldn’t be on outlawing retailers, but regulating them. By outlawing the products, he believes, the state is just going to create more danger around the consumption of cannabinoids, not less. “You’re just forcing a black market,” he said. “Yeah, you could take it out of our hands and put it in some dude’s hands in the streets, if that’s what you really want to do here, but honestly that is not a great idea.”