A Texas judge has denied a CBD retailer’s request to block the state’s ban on delta-8 THC.

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

RELATED: CBD Retailer Sues Texas Over Delta-8 THC Ban

Earlier this month, DSHS added a statement to its website to clarify that delta-8 THC is illegal under H.B. 1325, legislation signed into law by Gov. Greg Abbott in 2019 to legalize the cultivation of hemp that contains less than 0.3% delta-9 THC. Since the law did not specifically address delta-8, many manufacturers and retailers assumed the compound was legal until DSHS issued its statement earlier this month.

“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.”

On Oct. 22, State District Judge Gary Harger denied Hometown Hero’s request for a temporary restraining order to block the state’s delta-8 ban, The Texas Tribune reported.

“Based upon the pleadings and arguments of counsel, the Court finds that Plaintiff has not met the requirements of a temporary restraining order,” Harger’s ruling stated, according to the news outlet.

“[The] plaintiff’s alleged surprise that tetrahydrocannabinol (THC) remains a Schedule I controlled substance does not merit the extraordinary relief of a temporary restraining order,” DSHS wrote in its response to the lawsuit, as reported by The Texas Tribune. “THC, including Delta-8 tetrahydrocannabinol (Delta-8), has been a Schedule I controlled substance in Texas for over 40 years.”

DSHS has said that its decision to ban delta-8 THC was published earlier this year in the Texas Register, but Hometown Hero alleges in its lawsuit that the department’s method of publishing the rule was “invalid,” according to The Texas Tribune.

Another hearing on the case is scheduled for Nov. 5, the news outlet reported.

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