What is Delta 8 and is it legal in Texas?
PLANO, Texas — For several years now, John Fisher and his son have dedicated their business to a product that changed their personal lives, CBD.
“It’s absolutely changed my quality of life,” said Fisher, who’s experienced ongoing neck and back pain from a life-time of injuries. “I can play golf again without having all this hurt and this pain. I can swing the golf club again, and things like that.”
Fisher said he first became interested in CBD and cannabinoid-based medical alternatives after losing a loved one to prescription opioids, and wanted to find a better way to manage pain. That path eventually led Fisher and his son to open up their own CBD store called CBD Pros, for which they now have 21 locations and a large menu of products backed up by extensive lab and manufacturing quality results.
In the last year or so though, it’s another product that’s started taking over their shelves and grabbing the attention of more and more of their customers: Delta 8.
Fisher pulled from a shelf, behind the counter in his Plano store, several jars of Delta 8 flour, gummies, and droppers of tincture. He said at this point, Delta 8 products make up about half of his sales.
In fact, drive by almost any smoke shop or hemp retailer in Texas right now and you’ll likely see Delta 8 listed on the front window or being sold inside. The products are all the rage, but what is so special about Delta 8? Many unfamiliar with the product may glance at a jar of Delta 8 flour and mistake it for marijuana, but that’s illegal in Texas and at the federal level.
Delta 8 is very legal for now. A lot of its popularity may be because of how it compares to marijuana.
Delta 8 is a form of tetrahydrocannabinol (THC), according to Leafly, and yes: THC is the compound that gives marijuana its intoxicating psychoactive effects, the part that gets you high. However the THC in regular marijuana is Delta 9 THC. Just few have ever referred to it as Delta 9 in the past until Delta 8 started gaining popularity.
The difference in Delta 8 is that it occurs naturally in hemp — the variety of cannabis plant used to make CBD products that contains only trace amounts of THC. Fisher said Delta 8’s presence in hemp has been known for a long time, but the amount of it in the plant is small.
According to Leafly, the 2018 Farm Bill allowed hemp to be legally grown and worked with across the United States. As a result, cannabis experts started extracting Delta 8 from CBD and synthesizing it into its own product, a process that Leafly says is expensive but it’s in high demand.
Federal and most state’s laws have made anything with a high concentration of Delta 9 THC illegal for recreational use and even a lot of medical use. Those rules vary state by state, but Delta 8 falls into a sort of gray area and is being sold in most states, including Texas, as a legal THC.
So, the million dollar question: does it get you high like Delta 9 THC.
“It has been shown to be inebriating,” said Morgan Fox, Media Relations Director for the National Cannabis Industry Association.
Most experts are describing Delta 8 as a weaker form of THC than Delta 9, but depending on the tolerance of the person taking it, the size of the dose, and their overall body composition: they say they can still experience a high.
Fisher said he personally, in his use of Delta 8 products, has not experienced a high. He said many of the people coming into his store are not seeking it out for that kind of use at all; they’re looking for the medicinal benefits of THC like stress relief, sleep assistance, or an increase in appetite.
“You just get a relaxing feeling. You just have a feeling come over your body of just pure relaxation,” said Fisher. “You’ve got all kinds of different ailments out there that these products can very well help you.”
He said he’s getting customers from all walks of life, and Fox said it’s clear by the demand for Delta 8 products right now that people are looking for a legal path to legally purchase THC, whether for medicinal or recreational purposes.
However, Delta 8 is not universally loved by experts and lawmakers.
Currently, the Texas Legislature is nearing the end of their 2021 session and still working through several bills aiming to do things like expand research into the medicinal properties of psychedelics, expand the THC levels allowed in compassionate use of medical cannabis and decriminalize marijuana possession. Each of those bills remain in different stages with the deadline looming, but at least one took on an added amendment during debate to add laws in the state concerning the levels of Delta 8 THC allowed in products as well as Delta 9, and effectively put an end to much of the Delta 8 on the market in the state.
That prospect is receiving heavy push-backs from advocates and retailers who would likely lose business if the product was pulled from shelves.
Fox said the National Cannabis Industry Association agrees with treating Delta 8 the same way Delta 9 is treated state-by-state, for now. He says the reason isn’t to do away with the products though, rather to see them done right.
At this point the Delta 8 market is fairly unregulated and unchecked, Fox said.
Fisher’s Delta 8 products carry QR codes, like all of the rest of his products, that lead to extensive scientific and manufacturing info about each one. He said they pride themselves on only offering high quality products that meet high safety standards and only go to those aged 21 and up.
Fox fears that’s not the case with all shops and manufacturers out there right now selling and making Delta 8 though. He said without regulatory rules for cannabis in each state, customers can’t be assured of what they’re getting.
However he said simply banning Delta 8 altogether will likely only lead to another grey area.
“People are looking for a product that does relatively what cannabis does but falls within a legal gray area,” said Fox.
He said it should be even more motivation for lawmakers in states like Texas to stop trying to shut down cannabis and instead take steps to regulate it and see that it’s being done safely in their state.
“So that it’s produced in a regulated and tightly controlled fashion, there’s lab tests being done on it, consumers know exactly what they’re getting,” said Fox.
Fisher said he believes many of his customers also want to see a regulated cannabis market in Texas so that people can continue to unlock the health relief he has from these products: whether the right ones for them are CBD, delta 9 THC, or even the lighter delta 8 which he believes many would continue to prefer.
“This has great medicinal benefits for a lot of people and a lot of different conditions,” he said.
With a little less than a week of the legislative session left, delta 8 remains legal in Texas, for now, and likely federally legal until the next debates on the farm bill in 2022.
CORRECTION: A previous version of this story had the line "That prospect is receiving heavy kick-backs from advocates and retailers who would likely lose business…" It was incorrect and we have made the proper changes.
Delta-8 users scramble after Texas DSHS clarifies this form of THC is actually illegal
DALLAS — Texas Department of State Health Services updated its website last week to clarify that the cannabis product, delta-8, is illegal in Texas, despite many consumers and retailers thinking it was legal under federal law. For many people who use it, the news came as a surprise.
What You Need To Know
says delta-8 is illegal across the state
- Many Texas retailers were under the impression the cannabis product was, in fact, legal
- 0.3% is the legal threshold that distinguishes marijuana from hemp
Users assumed that the delta-9 Tetrahydrocannabinol isomer, delta-8, was legal under the state and federal laws authorizing hemp farming with less than 0.3% d9 THC concentration (0.3% is the legal threshold that distinguishes marijuana from hemp).
One of those consumers is Maria Stanley, a Dallas resident who is confused about what this clarification will mean for delta-8 as a whole moving forward.
"Literally, I have no idea, like can you buy it? Because The Weed Spot in Bishop Arts is somewhere in Dallas that I would like go often and they have the flower," Stanley said. "They have everything you can buy and they’ll even like put some in like coffees and things like that too,” Stanley said. "But no yeah, now I’m like ‘What does this mean?’"
Stanley has come to incorporate delta-8 into her daily routine. She says d8 produces a lot less of the anxiety and paranoia some users may experience with delta-9 — that tetrahydrocannabinol is the typical THC that one is referring to when talking about the compound in cannabis that gets you high.
"Some people will have a glass of wine or a beer or two after work as their way of winding down or relaxing. Whereas for me, I use a delta-8 gummy,” Stanley said. "I am a financial analyst working from home right now. So, after a long day of sitting at my desk at my computer, it helps me relax and not feel so anxious about all the things I should be doing or could be doing, and just what I want to do in that moment.”
According to the U.S. Food & Drug Administration’s website, delta-8 THC is the psychoactive substance found in the Cannabis sativa plant (of which marijuana and hemp are two varieties). "Delta-8 THC is one of over 100 cannabinoids produced naturally by the cannabis plant, but is not found in significant amounts in the cannabis plant,” the FDA’s website reads. "The natural amount of delta-8 THC in hemp is very low, and additional chemicals are needed to convert other cannabinoids in hemp, like CBD, into delta-8 THC (i.e., synthetic conversion).” The Drug Enforcement Administration’s website states, "For synthetically derived tetrahydrocannabinols, the concentration of delta-9 THC is not a determining factor in whether the material is a controlled substance. All synthetically derived tetrahydrocannabinols remain schedule I controlled substances."
Texas DSHS declined an interview with Spectrum News 1, citing pending ligation, but a spokeswoman sent a response saying the state’s definition of consumable hemp products only addresses delta-9, not any of its THC isomers, like delta-8.
Delta-8 is specifically named on the DEA’s list of Controlled Substances as Schedule I, and THC has been Schedule I in Texas since 1989. Schedule I drugs, substances, or chemicals are defined as drugs with no currently accepted medical use and a high potential for abuse. This placement puts Tetrahydrocannabinols alongside heroin, LSD and MDMA (ecstasy).
The statement went on to read: "DSHS has not made any changes to the Controlled Substances schedule related to THC since it was published in March 2021. THC was already on Texas’ Schedule I when the Legislature gave scheduling authority to the Commissioner of Health in 1989, and it has remained on Schedule I since that time. At the request of hemp growers who said there was confusion in the industry, DSHS posted the clarification statement at the top of the Consumable Hemp webpage earlier this month. In September 2020, the Commissioner objected to August 2020 DEA rule modifications to the extent that the new language may have allowed for the presence or addition of THCs aside from Delta-9 THC. DSHS held a public hearing in October 2020 to allow for public comment in accordance with the law. We did not receive any public comment and the DEA’s rule modifications were not adopted in Texas.”
"My biggest hope is that in 2022, when it’s time to vote for people, we will get some different people in office that will look at (delta-8) and honestly cannabis as a whole in Texas and be like ‘Alright, we’re way back here. The rest of the country is moving this way. It’s time for us to meet them on up there,’” Stanley said.
Stanley is so passionate about delta-8 because of the effects she’s seen it have on her mental health. She has bad anxiety and has been prescribed Xanax and Ambien in the past. She says her delta-8 gummies have helped her taper off the pills. It also helps her in social settings, now that she’s been sober 18 months.
"I stopped drinking because honestly of the mental health factors that alcohol was having on me. It was making my anxiety really, really bad. I was doing really stupid stuff when I was drinking. It kind of felt like any social setting, there had to be alcohol,” Stanley said. “So, I decided to cut it out and kind of explore what else I can do for, you know, my mental health and anxiety that’s not so damaging.”
Stanley went the d8 route about a year and a half ago when she quit drinking, specifically because it was “legal” and she could buy directly from the producers.
“I was able to know the true amount of milligrams each gummy was versus, you know, going through somebody, who’s going through somebody, who is getting it from Colorado,” Stanley said. “The fact that it was legal and there were carriers and shops that you can even go in person and see it and not have to just do it online, made all the difference.”
But she doesn’t know where to turn, now that the state has clarified the illegality of delta-8.
"Overall it’s just like ‘alright, so is it time to like go back to those Xanaxes or those Ambiens or like what,’ what else to do?” Stanley questioned. "I take one, I take two, I take five of these (gummies), the next day I’m fine. Like I wake up at six, I go for my workout. It’s not like you’re having five drinks, it’s not like you’re taking Ambien, like some of those prescription medications that really make me feel bad. And I’m on a couple other things for anxiety, but when in the moment I like feel the panic and I feel the anxiety, I’ll take this, I’ll take a couple hits of this and I’m better, more like level-headed, more just able to relax.”
Stanley and other delta-8 users like her want to see Texas cannabis laws change to join the rest of the country that is choosing to move toward a “greener” future.