The Texas Supreme Court ruling is important because it not only recognizes the Department of State Health Services’ authority to schedule Delta-8 but also any future synthetic cannabinoid variants, writes Matt Poling. In this file photo, Delta-8 THC products for sale in Garland.
Elias Valverde II/Dallas Morning News
Dallas law enforcement officials said they plan to enforce new THC regulations that carry penalties of up to two years in jail and $10,000 in fines, breaking with other Texas cities that are not focusing on enforcing the ban.
The new regulations took effect July 31, reclassifying certain THC products as controlled substances. It’s a change legal experts who spoke with The Dallas Morning News said may prove confusing to consumers and businesses.
“The reason why it’s confusing is because for the last six to seven years, Texans have had access to hemp-derived consumable products,” said Andrea Steel, lead counsel for three hemp businesses in a lawsuit challenging the ban. The federal lawsuit, filed Aug. 1, targets state health officials who initiated the new restrictions.
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“It just changed all of a sudden, and went from being legal to being a felony, pretty much within a matter of weeks,” she added.
Even so, the Dallas Police Department and district attorney’s office said they plan to comply with the new regulations, though no separate roll out of enforcement is planned.
Related: What to know about new restrictions on Delta 8, other THC products taking effect Friday
“Our enforcement procedures will remain consistent with applicable state law, and officers will continue to address violations as they are encountered through proactive enforcement efforts, complaints, and criminal investigations,” DPD spokesperson Allison Hudson wrote in a statement.
While possessing less than 4 ounces of marijuana leaf still is classified as a misdemeanor, possession of certain hemp-derived THC cannabis products now is a felony. This means DPD’s existing “cite and release” program — where officers can issue a court summons instead of making an arrest — won’t apply to the new restrictions.
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Claire Crouch, a spokesperson for the Dallas County district attorney, said the office will “follow the law and act accordingly should a case with probable cause be filed.”
Other Texas cities are taking more lenient approaches. The Harris County district attorney’s office in Houston said in a statement it isn’t prioritizing enforcing the ban, instead focusing on violent crime while leaving marijuana possession cases to its diversion program.
Steel said the different approaches to enforcement across the state risk causing more confusion in a rapidly-evolving legal landscape.
“When you have all across Texas different law enforcement agencies, some of them enforcing, some of them not,” she said, “we have an issue where law enforcement across the state may or may not be enforcing consistently.”
DPD said it is working to mitigate confusion, building on efforts to educate businesses and store owners before the bans took place. Hudson also wrote the department is collaborating with the Dallas Independent School District to educate students about the restrictions.
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Related: More cannabis companies join Texas medical marijuana program as list of potentials hits 15
Despite DPD’s efforts, experts worry the very nature of the new regulation will likely cause confusion for businesses and citizens. Dr. Katharine Harris, a drug policy expert at Rice University, said the new regulation leaves “significant gray area” around how to treat delta-9 THC products.
The new ban applies to all synthetically created THC forms — delta-8, delta-10, THCP, and THCA flower – while carving out an exception for delta-9 products with less than 0.3% THC by dry weight. But Parris noted that many compliant delta-9 products are also synthetically produced — a class of products whose legal status remains “unclear” with the regulation.
Harris said there’s a clear solution to the confusion swirling around the new regulations: passing comprehensive laws in the Texas Legislature. Without this, she said, regulations from state agencies will likely create more confusion — and more lawsuits.
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“Anytime that you rely on agency rulemaking authority for these kinds of changes,” she said, “you’re a lot more vulnerable to lawsuits than when it’s through the legislative process.”