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Texas high court hears challenge to agency's classification of delta-8 THC and scope of regulator's authority
Summary
The Texas Supreme Court considered whether the health services commissioner exceeded statutory authority in clarifying that certain forms of THC, including delta-8, are controlled substances and whether businesses have standing to seek injunctive relief. Counsel disputed whether the challenge targets criminal enforcement, civil license consequences, or both.
The Supreme Court of Texas heard argument in Texas Department of State Health Services v. Sky Marketing over whether the agency's scheduling decision that clarified certain forms of THC (including delta-8) is reviewable and what injuries, if any, give businesses standing to sue.
Counsel for the petitioners told the court the challenge focuses on criminal enforcement and that the commissioner lacks criminal-enforcement authority, meaning the trial court lacked jurisdiction to enjoin the commissioner's scheduling decisions. "The commissioner has not threatened enforcement," counsel said, arguing the petition does not assert civil enforcement claims such as license revocation or rule-based penalties.
That framing drew immediate questions from justices about whether respondents actually pleaded civil harms tied to licensing. "What about the civil side? Don't they have authority to revoke license, issue..." a justice…
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