Delta-8 products can be found just about anywhere in Texas — from vape shops to flea markets and convenience stores. Texas lawmakers and the feds are looking closely.
On a recent Wednesday afternoon, Joseph Jordan walked into Sean’s Essentials, a small vape shop in San Antonio. He was looking for something to help with his pain.
“I have lower back pain due to work I've been doing for the past 15 years, lifting boxes, unloading trucks and doing for a long time,” he explained.
The store carries an array of edibles, oils, ointments, joints and buds, all containing Delta-8 THC.
Employee Marnie Janotta held up a small jar for Jordan. “This is a Delta-8 lotion, and it's like an Icy hot,” she said. Jordan was intrigued but he ultimately left the store without making a purchase.
Sara Schmidt, a freelance writer in San Antonio, is a Delta-8 fan. She came across a sublingual form of it -- the kind that goes under tongue -- while looking for something to help her feel calm in the evenings.
“It just made my shoulders more relaxed, and I slept really well,” she said. Schmidt orders her Delta-8 over the Internet from a company in Colorado.
In Texas, marijuana and products containing THC are illegal, with the exception of very limited medicinal use.
Delta-8 is derived from the hemp plant, which, thanks to the Farm Bill of 2018, is legal anywhere in the United States and Texas … or maybe not. There’s quite a bit of debate as to whether it’s legal or not.
“The fact that they're not being prosecuted should not be construed as legality,” said Daniel Mehler, a Texas lawyer who specializes in cannabis law. “Legality with these products is a lot more complex than just simply they're legal. That's just blanket not true,” he added.
Mehler said the process of using CBD oil to make Delta-8 products is what makes it questionably legal because it can be derived from hemp or marijuana. And even though the two derivatives are identical, the one made from marijuana would be illegal. But as long as the hemp plant -- from which the Delta-8 is derived -- contains less than .3 percent of THC, it's considered legal.
Heather Fazio, director ofTexans for Responsible Marijuana Policy said a state agency has thrown some shade at Delta-8.
“The Department of State Health Services testified during the legislative session saying that they do consider this to be an illegal substance,” Fazio said. “The question is: ‘Is it going to be enforced since they are not an enforcement arm?’ ”
Texas legislators made an attempt to outright ban Delta-8 in the state but that measure failed to pass. The Drug Enforcement Administration, or DEA, has signaled it may eventually consider Delta-8 a synthetic drug, which would definitely make it illegal. As of August 2021, 18 states have either banned or restricted the sales of Delta-8.
Michael Weaver, a professor of psychiatry and medical director of the Center for Neurobehavioral Research on Addictions at UT Health Houston, said there are many unknowns when it comes to Delta-8.
“We know a lot about what Delta-9 THC tetrahydrocannabinol (found in marijuana) does to people's brains,” he said. “Delta-8 is very similar to that, as the name suggests, but it is a different cannabinoid, and those are just two cannabinoids out of over 100 that are found naturally in the hemp plant.”
There have been a few studies that have shown promise for Delta-8’s medicinal use.One such study showed the drug reduced vomiting in pediatric patients undergoing chemotherapy.
However, these products are unregulated, and Fazio said buyers should be cautious.
“Definitely make sure you know where you're getting it from, that it's been tested, it's free from contaminants and that you're getting what you're expecting,” she cautioned.
Fazio’s organization is in favor of regulating the sale of Delta-8 as well as the decriminalization and legalization of marijuana.
Many users of Delta-8 claim that it gives them more of a “clearer high” than regular marijuana, and most experts say it’s a much milder drug than its cousin, Delta-9, one of the active cannabinoids in marijuana. It's also important to note that anyone using Delta-8 products will generally test positive on drug screens for marijuana.
At least for now, the legal loophole allows consumers to buy a form of marijuana in Texas, despite lawmaker’s best efforts to prohibit it.
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