The Texas Supreme Court has cleared the way for Texas health officials to ban manufactured delta-8 THC products, reversing lower court rulings that had blocked the state from enforcing its controlled substance designation.

In a ruling issued today, the court sided largely with the Texas Department of State Health Services and Commissioner Jennifer A. Shuford, finding that state law gives the commissioner broad authority over the state’s controlled substance schedules. The decision reverses a trial court order that had granted a temporary injunction blocking the state’s attempt to treat manufactured delta-8 THC as a controlled substance.

The case centered on whether Texas’ 2019 hemp law, which followed the federal 2018 Farm Bill, legalized delta-8 THC products so long as they came from hemp containing no more than 0.3% delta-9 THC. Businesses challenging the state’s position argued that lawmakers opened the door to the products when they removed hemp and “THC in hemp” from the state’s controlled substance laws.

The Supreme Court disagreed, concluding that the Texas Controlled Substances Act did not strip the commissioner of authority to include manufactured delta-8 THC as a controlled substance. The court also rejected claims that the department violated state administrative law through a 2021 website statement saying that all forms of THC other than compliant delta-9 THC in hemp, including delta-8, are Schedule I controlled substances.

The ruling could have major implications for stores across Texas that sell delta-8 THC gummies, vapes, beverages and other hemp-derived intoxicating products. Delta-8 occurs naturally in trace amounts in the cannabis plant, but the court said the products at issue contain manufactured delta-8 THC at concentrations far higher than what naturally occurs in hemp.

The court emphasized that naturally occurring trace amounts of delta-8 THC in hemp were not the same as manufactured products designed to produce intoxicating effects. It also said the commissioner had represented that naturally occurring delta-8 THC in the hemp plant remains tolerated under the current legal regime.

Justice Evan Young, writing for the court, said the 2019 Texas Farm Bill did not clearly legalize manufactured delta-8 THC products.

“If the legislature desires to legalize powerful drugs, it has every tool it needs to do so—and to do so unmistakably,” the opinion states.

The court affirmed that the businesses had standing to sue, but ultimately ruled that sovereign immunity barred their claims. It reversed the lower courts on the ultra vires and administrative procedure claims and rendered judgment reversing the trial court’s temporary injunction.

Justice James Sullivan did not participate in the decision.

The ruling comes as Texas and other states continue to grapple with how to regulate hemp-derived intoxicating products that expanded rapidly following the 2018 federal Farm Bill.