A CBD retailer in Austin has sued Texas over its ban on delta-8 THC.

Sky Marketing Corp., which does business as Hometown Hero, filed a lawsuit in Travis County district court last week to block the Texas Department of State Health Services (DSHS) from taking “enforcement action” against the sale of low-THC hemp products that the store owner argues are legal under both state and federal law, according to the San Antonio Current.

Earlier this month, DSHS added a statement to its website declaring that delta-8 THC is illegal under Texas law.

“Texas Health and Safety Code Chapter 443 (HSC 443), established by House Bill 1325 (86th Legislature), allows Consumable Hemp Products in Texas that do not exceed 0.3% Delta-9 tetrahydrocannabinol (THC),” the statement reads. “All other forms of THC, including Delta-8 in any concentration and Delta-9 exceeding 0.3%, are considered Schedule I controlled substances.”

RELATED: Texas Officials Declare Delta-8 THC Illegal

Until the DSHS issued this statement, businesses in the state sold products containing delta-8 under a grey area of H.B. 1325, which Gov. Greg Abbott signed into law in 2019 to legalize the cultivation of hemp that contains less than 0.3% delta-9 THC. The law did not specifically address delta-8, however, leaving many manufacturers and retailers assuming that the compound was legal.

In its lawsuit, Sky Marketing alleges that DSHS and its commissioner, John Hellerstedt, did not seek proper input on the rule change, the San Antonio Current reported. The company argues that the ban on delta-8 will result in financial damages for Texas’ hemp industry, and claims that the Texas Legislature never meant to outlaw the sale of delta-8 products. The lawsuit notes that several bills have been introduced in recent legislative sessions to ban delta-8, but that none of the legislation passed the Legislature.

“The statement was added to the DSHS website to clarify for consumable hemp product licensees and retail sellers that Delta-8 and all other forms of THC are still on the list of Schedule I controlled substances,” the DSHS previously told the Dallas Observer, although it is unclear how the department plans to enforce the rule.

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