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Opinion: Texas woman’s arrest for Delta-8 THC will spur atmosphere of uncertainty

A Texas woman was detained October 2 for possession of delta-8 THC. It’s one of the first known felony-level arrests in a state that hasn’t explicitly banned the substance.

We at Nothing But Hemp believe this creates an atmosphere of uncertainty and unnecessary fear for the public, when the quickly-changing cannabis legal landscape means it’s already difficult to know what’s allowed.

Delta-8 THC — A ‘Confusing Mess’?

The woman was arrested in Brazos County, Texas, with police reporting that she had delta-8 THC, according to area news outlet KBTX 3.

Although Texas lawmakers have discussed banning delta-8, prohibition failed in the last session.

Still, a local hemp-product retailer and the president of the Houston Forensic Science Center both told KBTX 3 that delta-8 exists in a regulatory “gray area.”

“I think because delta-8 is THC that’s where the gray area is. Because it’s within the legal limits of what you can take, that’s what makes it legal in the 2018 Farm Bill,” Kim Augsburger who owns CBD American Shaman in College Station, told the news outlet.

“It is a really confusing mess and everybody is scratching their head really, of which of these are legal and which of them are not legal,” said Peter Stout, Houston Forensic Science Center president and CEO. “Delta-8 THC derived from hemp is kind of this gray area. It may be legal, but delta-8 derived from marijuana would be still illegal. I can’t tell you the difference nor can anyone else.”

According to KBTX reporter Clay Falls, “Law enforcement in Brazos County say they are handling Delta 8 on a case by case basis. They encourage you to keep the original packaging and receipts and keep it unopened if traveling in a vehicle.”

But people will not likely be given the benefit of the doubt. A legal analyst told KBTX that in Brazos County, where the arrest took place, THC is THC.

“[A]t least in Brazos County if you are in possession of delta-8 you will be prosecuted,” said Shane Phelps, the news station’s legal analyst, noting that if the delta-8 THC was under 0.3 percent the charges could be dropped.

Hemp-derived delta-8 is legal federally — and in Texas

The U.S. legalized hemp and products derived from it with the 2018 Farm Bill.

Although there is some question of whether delta-8 THC should be a "controlled substance analogue,” it is currently unregulated as a cannabinoid found naturally in hemp.

Texas legalized hemp in 2019, although at that time they prohibited the processing and manufacture of smokable hemp. According to Daily CBD, delta-8 THC is legal in Texas if made from hemp, and the state may be moving toward full legalization. Municipalities including Austin, San Antonio, Dallas, and Travis County have passed “cite and release” laws ending cannabis-related arrests.

It’s unclear whether Brazos County has created regulations specifically prohibiting delta-8 THC. But it seems unlikely based on the report from KBTX, in which the county’s district attorney “said by phone the situation with delta-8 is complicated.”

Atmosphere of Uncertainty

We support consumers in choosing and legally accessing supplements that support optimal health. Many of our customers tell us they prefer delta-8 and other hemp products to pharmaceutical drugs, saying hemp isolates offer relief from pain, anxiety and sleeplessness with fewer side effects.

It’s time to legalize cannabis, ideally across the nation. A consistent, regulated market would benefit consumer safety and allow legitimate hemp-based businesses to thrive. As we’ve written before, we believe a prohibition of any cannabis product perpetuates stigmas rooted in racism, which propelled cannabis prohibition with the Marihuana Tax Act of 1937 and the Controlled Substances Act of 1970.

Even with statutes in place, the speed at which cannabis laws are changing can make it difficult for people to keep up with what’s allowed in their state and county. We believe an arrest without the backing of an identifiable law creates an atmosphere of uncertainty for the public, and has the potential to negatively impact the hemp industry.

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