Is Delta-8 Legal in Texas?

Twenty-four states and the District of Columbia have legal recreational marijuana, but it remains illegal at the federal level, where it is categorized as a Schedule I drug, alongside controlled substances like heroin and LSD. Texas has strict laws forbidding the use of cannabis. However, delta-8 THC, which is acquired from hemp rather than marijuana, is considered by many to be a legal substitute for marijuana.

Marijuana and hemp are distinguished from one another by their level of delta-9 THC. The 2018 Farm Bill removed hemp from the controlled substance list, as long as it contains less than .3 percent Delta-9 THC. However, critics of hemp products accuse companies of exploiting a loophole in the law to sell intoxicating, unregulated, and potentially dangerous hemp products online and in various shops and convenience stores across the U.S. As a result, some states have been cracking down on the sale of some hemp derived products, including delta-8:

• In September 2023, an Arkansas federal judge blocked a state law forbidding delta-8 THC products after retailers argued that they were legal under federal law.
• That same month, a Texas appeals court upheld a temporary pause on the state’s ban of delta-8.
• In October, a Maryland judge issued a preliminary injunction allowing businesses that offer “intoxicating hemp products” for sale to reopen after they were ordered to close pursuant to the state’s new cannabis law.

Not surprisingly, laws regarding the manufacture, sale, and use of delta-8 THC and delta-9 THC continue to evolve.

What is Delta-8?

Delta-8 tetrahydrocannabinol (THC) is one of more than 100 cannabinoids (marijuana and hemp are two varieties) produced naturally by the cannabis plant. Because the plants contain delta-8 only in small amounts, it is typically mass-produced in concentrated amounts from hemp-derived cannabidiol (CBD), a hemp product that doesn’t get consumers high but can be used to create a substance that is intoxicating.

Delta-8 THC products are available in many forms, including gummies, chocolate and other candies, cookies, tinctures, vaping cartridges, infused drinks and even breakfast cereal. However, these products have not been assessed or approved by the U.S. Food and Drug Administration (FDA) for safe use, and any delta-8 THC product claiming to “diagnose, cure, mitigate, treat, or prevent diseases is considered an unapproved new drug,” according to the FDA.

After receiving more than 100 adverse event reports concerning consumers who experienced hallucinations, vomiting, tremors, anxiety, dizziness, confusion, and loss of consciousness after using products containing delta-8 THC, the FDA has expressed concerns about inconsistencies in product formulations and labeling. The agency has also expressed concern that delta-8 THC products may contain potentially harmful chemicals or contaminants used during the manufacturing process.

In May 2022, the agency issued warning letters to five manufacturers of delta-8 THC products for violating the Federal Food, Drug, and Cosmetic Act. The warning letters speak to the unlawful marketing of unapproved delta-8 THC products as “unapproved treatments for medical conditions and other therapeutic uses.” They also cite violations related to misbranding and inadequate directions for use, and the addition of delta-8 THC to foods like gummies, chocolate, caramels, chewing gum, and peanut brittle.

What is the difference between delta-8 and delta-9?

Both delta-8 THC and delta-9 THC come from the cannabis sativa plant. However, while the plant contains significant amounts of delta-9 THC, it contains very little delta-8 THC, which is considered a minor cannabinoid. Although CBD doesn’t have any intoxicating effects, depending on quality, quantity and other factors, both delta-8 THC and delta-9 THC can produce a “high.” Delta-8 THC has similar psychoactive properties to delta-9 THC, although it is generally less potent than delta-9.

Although the positive and negative effects of delta-8 THC depend on dosage, frequency, method of administration, quality of production, and the health of the individual, some believe it may provide pain relief, improve quality of sleep, increase appetite, and reduce inflammation. However, overconsumption could lead to lethargy, disorientation, anxiety, panic attacks, dry mouth and eyes, heart palpitations or irregular heart rhythms, and impaired coordination.

Some manufacturers market delta-9 THC products to treat or mitigate symptoms of certain medical conditions or diseases. However, the FDA has approved only two synthetic THC formulations—dronabinol and nabilone—which are used to relieve chemotherapy-induced nausea and vomiting. Nabilone is also used to boost the appetites in AIDS patients. Depending on the amount and quality of the delta-9 THC consumed, adverse side effects might include paranoia, anxiety, sedation, confusion, dry mouth, dysphoria, and low blood pressure.

Unlike delta-9 THC, delta-8 THC won’t likely lead to a positive result for THC on a drug test unless the test specifically searches for delta-8 THC substances. However, if a delta-8 THC product contains concentrations of delta-9 THC, a drug test may show a positive result for THC. With the increasing popularity of delta-8 THC, some laboratories are now including confirmation analysis for delta-8 THC to drug tests.

How Texas law looks at delta-8 and delta-9

Currently, delta-8 THC is legal at the federal level, but not legal in every state. Delta-9 THC is illegal at the federal level but legal recreationally and/or for medical use in several states. Texas has specific laws regulating the possession and use of delta-9 and THC-containing products, and distinguishes between low-THC cannabis products, such as medical CBD, and THC-containing products that are not derived from low-THC cannabis. However, Texas law does not specifically address delta-8 THC, which creates a regulatory gray area.

The use of CBD has also raised numerous safety concerns, particularly with long-term use. Research has shown a heightened risk for liver damage, dangerous interactions with some medications, and potential harm to the male reproductive system. CBD exposure is also a concern for certain vulnerable populations such as children and those who are pregnant. As a result, the U.S. Food and Drug Administration (FDA) has called on Congress to establish a new regulatory system for CBD.

What you need to know is, it’s perfectly legal for you to possess and use delta-8, but that may not stop law enforcement from trying to charge you with a crime. If that happens, call our defense lawyers as soon as you can. Remember that you have the right to remain silent no matter what kind of drug charge you may be facing.

At the Law Office of Mary Beth Harrell, we understand the confusion surrounding drug charges related to delta-8 and delta-9 THC. Our Copperas Cove drug and controlled substances defense attorneys will review your case, give you all the available options, and protect your rights. Call us or fill out our contact form today. We want to help. We maintain an additional office in Killeen and proudly serve Belton, Harker Heights, Waco, Williamson County, Bell County, Coryell County, and McLennan County.