Delta-8 Update: Rehearing Denied, But Delta-8 Products Remain Legal for Now

The Texas Hemp Business Council has received questions from members regarding the status of delta-8 products following recent developments in the Sky Marketing (Hometown Hero) litigation.

While the Texas Supreme Court’s decision was issued several weeks ago, we know some members may have missed the update. Here’s where things currently stand.

At this time, delta-8 products remain legal in Texas.

Although the Texas Supreme Court ruled in favor of the Department of State Health Services (DSHS) in the Sky Marketing case, that decision alone does not immediately make delta-8 illegal.

Before delta-8 can become a Schedule I controlled substance under Texas law, DSHS must complete the formal administrative scheduling process. Until that process is completed, delta-8 products remain legal.

DSHS has publicly indicated its intention to move forward with scheduling delta-8. While no official timeline has been announced, we anticipate the rulemaking process could take approximately 30 days once it begins.

THBC will continue monitoring the situation closely and will notify members as soon as DSHS initiates the scheduling process.

Rehearing Request Denied

On June 5, 2026, Sky Marketing (Hometown Hero) filed a motion asking the Texas Supreme Court to reconsider its decision.

The Court has now denied that rehearing request, bringing the Sky Marketing litigation to a close.

While the case has concluded, the denial of rehearing does not change the current legal status of delta-8 products. The remaining step before delta-8 could become prohibited is the DSHS administrative scheduling process.

Background

On May 1, 2026, the Texas Supreme Court reversed the lower court’s injunction in the Sky Marketing case. In doing so, the Court held that DSHS acted within its statutory authority when regulating delta-8 and that the lower courts should not have prevented the agency from exercising that authority.

The case addressed important questions regarding the agency’s regulatory authority and has been litigated for several years. While the litigation has now concluded, any change to the legal status of delta-8 still depends on DSHS completing the required administrative rulemaking process.

What Businesses Should Do

For now:

  • Delta-8 products remain legal in Texas.
  • Continue monitoring THBC communications for updates.
  • Be prepared for DSHS to begin the scheduling process in the near future.
  • If you have questions regarding your specific business or product compliance, consult with qualified legal counsel.

THBC will continue providing updates as additional information becomes available.