KILLEEN, Texas — Latasha Mayhorn has managed 7th Heaven in Killeen for around three years. They sell CBD products for pain relief and stress. They also sell products containing Delta 9 THC under 0.3 percent of the total product weight.
When Mayhorn started stocking Delta 8 THC products due to popular demand, she told 6 News sales got even better.
"Probably less than a year ago they came out with Delta 8, there was too much product to say it was illegal," Mayhorn told 6 News Monday.
But there was a problem. Delta 8 TCH, which has a different chemical structure than Delta 9, isn't technically legal in Texas either.
The Texas Bill that changed laws (HB 1325) to make small amounts of Delta 9 legal didn't include Delta 8 in it's text. It did however, include the following statement about hemp and controlled substances in general:
SECTION 6. Sections 481.002(5) and (26), Health and Safety Code, are amended to read as follows:
(5) "Controlled substance" means a substance, including a drug, an adulterant, and a dilutant, listed in Schedules I through V or Penalty Group 1, 1-A, 2, 2-A, 3, or 4. The term includes the aggregate weight of any mixture, solution, or other substance containing a controlled substance. The term does not include hemp, as defined by Section 112.001, Agriculture Code, or any tetrahydrocannabinols or other substances in hemp.
Unfortunately, stating that tetrahydrocannabinols (THCs) aren't included in the term "controlled substance" doesn't change the fact that the U.S. Department of Justice does classify tetrahydrocannabinols as a schedule 1 controlled substance and specifically mentions Delta 8 in that category, making it illegal to sell.
At the same time, there are no Texas statutes that specifically protect Delta 8.
Local Defense Attorney Kyle Watkins told 6 News Monday, stores hoping to continue selling those products, and the people that buy them, are taking a risk.
"The statute itself is vague at best and what it appears the statute intends to do is make it legal for people to sell and people to own products from hemp that contain Delta 9 THC in a quantity of less than 0.3 percent. The problem is, you have these shops that are selling CBD products and THC products and its going to be very hard to know what the lab report is going to be if a person buys those products and gets pulled over," Watkins said. "If the analyst tests it and it comes back higher that 0.3 percent Delta 9 THC, now we are moving into a serious punishment range."
Watkins said a person could easily be charged with a felony in this case.
Additionally, he said the the fact that H.B.1325 seems to allow any type of THC in one area of that bill and only specifies Delta 9 in another area isn't enough to claim non-Delta-9 THC is legal in court.
The Texas Department of State Health Services also took a stance on the issue last week When hemp growers started asking for clarification on Delta 8, the DSHS responded by specifically naming Delta 8 as a schedule 1 substance on its website.
"At the request of hemp growers who said there was confusion in the industry, DSHS posted the statement at the top of the Consumable Hemp webpage earlier this month. DSHS has administrative enforcement authority over consumable hemp products. Schedule I controlled substances are not allowed in consumable hemp products," DSHS Senior Press Officer Lara M. Anton said in an email.
Mayhorn said Monday they had just stocked Delta 8 products a month ago and it had already in popularity to account for 70 percent of their revenue. Last week she started getting calls from friends and customers warning her about the change.
"We thought we were doing the right thing until they came and told us 'hey, be careful, Delta 8 is illegal,'" Mayhorn said. "It's suddenly against the law."
Mayhorn said they are now trying to access the cost of tossing out 40 percent of their new product. She told 6 News later Monday they would remove much of the product to stay safe.
"We would still be in business. Would we hurt? Yes. Delta 8 is the most popular thing in the store," Mayhorn said. "Right now I'm about to pull it off the shelf because it is not worth the risk."
Killeen Mayor Jose Segarra told 6 News Monday the Killeen Police Department is waiting for information from the Bell County District Attorney before they take a stance on Delta 8 sales.