No wonder you’re confused by the proliferation of stores across North Texas marketing gummies, oils and smokes containing low-dose THC — shorthand for the psychoactive compound tetrahydrocannabinol, which is found in the cannabis plant.
Cannabis plants produce both hemp and marijuana. Hemp is classified as concentrations less than 0.3% THC; marijuana contains amounts greater.
Consumers view hemp-based products as miracle elixirs that restore mental and physical well-being. Critics see them as an exploitation of loopholes in the state’s hemp legislation.
“Confusion reigns supreme” is the most apt assessment of the issue, based on my several months of research. Information is often murky, even contradictory. Expert sources assess the same facts in different ways. Enforcement practices are inconsistent; safety standards are lacking.
These questions and answers provide a starting point for understanding the low-dose THC issue and its future in Texas.
What set off the low-dose THC boom?
The 2018 federal farm bill, approved with bipartisan support, removed hemp from the Drug Enforcement Agency’s controlled substances list. The agriculture-friendly action allowed farmers to cultivate crops needed for rope as well as the textiles and plastics industries.
The Texas Legislature followed by passing House Bill 1325, signed by Gov. Greg Abbott in June 2019, to allow the production, manufacture, retail sale and inspection of industrial hemp crops and products, granted that they test at less than 0.3% delta-9 THC.
In lobbying for the federal action, state Agriculture Commissioner Sid Miller touted the change as “taking the shackles off the American farmer.”
This year, at a legislative hearing on many of the unintended consequences of HB 1325, state Sen. José Menéndez, D-San Antonio, said, “In a way, inadvertently, we passed a law that sort of legalized the use of cannabis in the state of Texas.”
What’s legal and what’s not in Texas?
In the five years since the law changed in Texas, it’s not only hemp farmers who thrive but the low-dose THC industry. First to hit the market was the generally non-intoxicating cannabidiol CBD, which is infused into products like gummies, creams, candies, drinks and pet products.
Because the state law specified only one THC compound — known as delta-9 — in its “less than 0.3% THC limit,” retailers saw an opportunity to sell other THC products, such as the synthetically manufactured delta-8.
Delta-8 uses a variety of chemicals to convert CBD into a more concentrated product. Some users maintain the delta-8 “high” is milder than that produced by delta-9. Others say it is similar to marijuana.
Although no age limits exist for any of these products, smoke shops often require customers to be 21 to enter. The only legal restriction is the Tobacco 21 law, which raised the minimum age to purchase tobacco products, including vaping devices, from 18 to 21.
How is the 0.3% delta-9 THC limit on products regulated?
Accuracy in product labeling and lab tests largely operates on the honor system. Most products contain a QR code link to a breakdown of ingredients the manufacturer’s chosen lab detected.
However, remember what happened to North Texan Kendall Reed, who hoped a low-dose THC product would reduce her anxiety. A Garland retail store owner assured her a delta-8 vape oil was legal and pointed to the QR code as proof. A Plano officer saw the product when she was stopped several weeks later on a traffic violation and she was arrested on a felony drug charge. Forensic testing showed the oil contained seven times the legal delta-9 THC level.
Kendall’s ordeal illustrates that a QR code’s promise of clean lab results and product packaging that promises “less than 0.3% delta-9 THC” doesn’t leave a consumer in the clear.
The Texas Department of State Health Services’ consumer protection division is responsible for ensuring retail stores follow the rules. Division director Timothy Stevenson said in May six enforcement officials are responsible for visiting thousands of retail operations licensed to sell hemp-based products. Most of the inspections result from complaints about specific shops.
Several cities and school districts have begun stepped-up enforcement. In North Texas, Grand Prairie has added restrictions on retail stores and, in late August, Allen police raided nine hemp shops accused of selling products with illegal levels of THC.
How is Texas trying to close the low-dose THC loophole?
The state health department tried in October 2021 to outlaw delta-8 by categorizing the synthetic product as a controlled substance similar to delta-9. Hometown Hero CBD in Houston went to court and won an injunction allowing delta-8 sales to continue. The case is pending before the Texas Supreme Court.
Lt. Gov. Dan Patrick has made clear he wants restrictions — perhaps a ban — on delta-8 and other emerging THC products when the Legislature convenes in January. The Senate’s State Affairs committee hearing in May came in response to Patrick’s interim legislative charge to look into the issue
In addition to action on delta-8, lawmakers have signaled they will consider imposing age limits on purchases, advertising restrictions and third-party testing.
What are the facts on low-dose THC’s health benefits?
Much research exists on the pros and cons of marijuana; that’s not the case with hemp-based products. While many people say CBD and delta-8 help with a variety of ailments, scientific studies have not provided empirical evidence.
Because hemp products are not regulated, consumers can’t be sure how much THC they contain or what other ingredients may be included.
This is why some states have legalized marijuana but made cannabinoids such as delta-8 illegal. Alaska, for instance, allows medical and recreational marijuana but not delta-8 because of concerns it can be cut with toxic materials unknown to consumers.
The U.S. Food and Drug Administration’s most recent report on delta-8, published in May 2022, noted the agency had not evaluated or approved the product for safe use. In March, the National Institutes of Health released 2023 research showing about 11% of 12th-grade students across the U.S. reported past-year use of delta-8.
Public health officials at the May legislative hearing in Austin expressed concerns delta-8 candies and drinks are potentially harmful to customers, particularly children and teens, who don’t realize hemp products can cause psychoactive reactions.
On the other side of the debate, Texas veterans spoke at the hearing about delta-8 being a lifesaver. They pointed out it costs less and is easier to access than the state’s limited medical marijuana effort, the Compassionate Use Program. Through this program, people suffering from epilepsy, autism, cancer and post-traumatic stress disorder can access cannabis with less than 1% THC.
How often are consumers getting busted?
My research turned up a handful of cases similar to Kendall’s — instances in which someone buys a legal hemp-based product only to be charged with a felony because it contains far more THC than advertised.
None of those individuals or families were willing to go on the record. That’s understandable given the considerable time and resources put into trying to get the felony off public records, either through case dismissals or diversion court programs.
Thank goodness for Kendall’s courage in going public to help others. Who knows how many other Texans have been caught in this injustice.
In all the cases I looked into, the THC-related arrests began with a separate violation. In Kendall’s case, her car lacked a registration sticker. In others, students had left campus without permission or drivers were stopped for speeding or rolling through a stop sign.
Sohail Ladhani, who runs the Garland store where Kendall made her purchase, told me he emphasizes to customers not to keep products in their cars. He encourages them to hang onto the product packaging, which contains the QR code, if they are outside their home.
While low-level marijuana possession is a misdemeanor in Texas, a THC concentrate over the 0.3% level is a felony with punishment up to a $10,000 fine and 180 days to two years in prison.
After months of reporting on THC, it’s clear Austin needs to shore up the law. The confusion created by its loopholes is getting innocent people into serious trouble.