The Texas Supreme Court has handed a significant legal defeat to the state’s hemp industry, ruling that the Commissioner of the Texas Department of State Health Services (DSHS) acted within her authority when she classified manufactured delta-8 THC as a controlled substance.
The decision, delivered by Justice Evan Andrew Young, effectively reverses lower court rulings that had previously protected the sale of the popular psychoactive compound.
The court’s judgment means that while naturally occurring hemp is legal, the concentrated, manufactured versions of delta-8 found in shops across Texas remain restricted under the state’s drug schedules.
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The legal battle began after the 2019 Texas Farm Bill legalized hemp—defined as cannabis containing less than 0.3% delta-9 THC. Following this, many businesses began producing and selling delta-8 THC, a different isomer that occurs only in tiny amounts in nature but can be chemically manufactured from hemp-derived CBD to produce a “high” similar to marijuana.
In 2021, DSHS Commissioner Dr. Jennifer Shuford clarified that all forms of THC, except for the specific 0.3% limit of delta-9 allowed in hemp, were still considered Schedule I controlled substances.
A group of manufacturers and retailers, including Sky Marketing Corp. (doing business as Hometown Hero), sued the state. They argued the Commissioner overstepped her bounds and that the 2019 law had already legalized all hemp derivatives, including delta-8.
The Supreme Court disagreed with the vendors’ interpretation. Justice Young wrote that the Texas legislature gave the Commissioner “substantial and unusual degree of discretion” to oversee controlled substance schedules to respond to “emerging threats to public safety.”
The court noted that while the 2019 Farm Bill opened the door for hemp, it did not explicitly strip the Commissioner of her power to regulate other psychoactive substances.
“If the legislature desires to legalize powerful drugs, it has every tool it needs to do so—and to do so unmistakably, as we expect for such a major change to social policy,” Justice Young wrote in the opinion. “The role of the courts is merely to assess the state of the law as it is.”
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The ruling ends a period of legal limbo for Texas hemp businesses. When the Commissioner first moved to control delta-8 in 2021, the industry reported a chaotic scramble to pull products from shelves and destroy inventory.
While a temporary injunction had allowed sales to continue during the appeals process, this new ruling dissolves that protection.
The Court affirmed that the vendors had the legal standing to sue but ultimately reversed the injunction that had kept delta-8 legal in the state.
Justice Young concluded that those seeking a different outcome for delta-8 should look to lawmakers rather than the bench, stating that the Texas Controlled Substances Act “has not divested the commissioner of discretion to include manufactured delta-8 THC as a controlled substance.”
Justice Sullivan did not participate in the decision.
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