High times: How Texas stumbled into a legal cannabis market and what it could mean for pot

May 5, 2023 · Yahoo!News

Walk into a gas station or smoke shop and you’ll see them on the shelf, packaged in colorful boxes with flavors like fruity pebbles, magic mango and grape ape gusher.

Like marijuana, these cannabis-based products deliver a high. But unlike marijuana, these products are legal in Texas, thanks to laws that allowed the cultivation of hemp.

Strawberry flavored gummies are for sale in a smoke shop walking distance from Pascal High School. Sticky amber-colored oil for vaping with a pineapple scent sits in a glass case at a gas station a four minute drive from Crowley High School. A crisp, clinical wellness store in far north Fort Worth near Keller Central High School displays products on the wall: Knockout THC Squares and “Grandaddy Purple” vape cartridges.

A 2019 law and its 2018 federal counterpart opened Texas to a fast-growing market of consumable hemp products. The laws legalized the cultivation of hemp, including for the sale of the consumable hemp products. The products are often referred to by their abbreviated chemical names like delta-8 and come in a variety of forms, from oils to edibles to the plant itself.

These products have made their way into schools, clogging alternative education campuses because kids are testing positive for marijuana. They’ve frustrated probation departments, who are telling people to stay away because they can’t tell whether a positive drug test is the result of marijuana or a legal product.

Then there’s the question whether the products fall within the legal limits for THC, the chemical in marijuana that gets you high. The Star-Telegram tested 11 products purchased from Fort Worth area stores and two results indicated possible marijuana. One Arlington police officer said he’s seen products come back stronger than most marijuana.

In a state that has been slow to expand access to marijuana, the change lawmakers brought caught them by surprise.

“I don’t think we could have predicted how quickly they came in and started selling the products that they’re selling,” said Texas Rep. Tony Tinderholt, an Arlington Republican.

Rep. Ramon Romero, a Fort Worth Democrat, agreed that lawmakers failed to anticipate the quick rise of products being sold that can get people high.

“We probably should have,” he said. “But, you know, this is what we do. We react, right?”

Some advocate for the products’ economic and medical benefits. But there’s also worry about the easy access of the products, particularly for teens, and some products testing over the legal THC limit for hemp.

Love or hate it, the products are out there, just a gas station, smoke shop or health store away.

With the goods already on the shelves, some Texas legislators wonder if it’s time to legalize marijuana to curb the “loophole” market.

Hemp, Marijuana: Confusing cannabis laws

Marijuana and hemp are the same plant: Cannabis, but have differing amounts of THC, the chemical that produces a high. It can take a chemist to tell them apart.

Under federal and Texas law, hemp is cannabis with delta-9 THC concentration below 0.3% by dry weight. It and similar delta products like delta-8, -9, -10 and -11, are all slightly different at a molecular level and all chemical components of cannabis. The chemicals are all molecularity similar and can produce different levels and types of highs.

All are considered consumable hemp products. Marijuana is cannabis with the delta-9 THC content above 0.3%. Testing to differentiate between the chemicals can pose challenges and proved problematic when the state in 2019 passed its law legalizing hemp.

The state law, House Bill 1325, followed passage of the 2018 Farm Bill in Congress, which gives states the power to regulate and limit hemp production and sales within their borders. The Texas law includes rules for regulating consumable hemp products, such as labeling and testing requirements.

As Texas A&M Law School Professor Franklin Snyder puts it, it’s a confusing web of laws.

Then there’s the question of the legality of delta-8 in Texas. Snyder has heard some people argue it is legal in Texas while others argue it’s clearly not.

“And they’re both right in some respects,” Snyder said

The debate is tied up in a Texas appellate court. In 2021, delta-8 was named a controlled substance by the Texas Department of State Health Services. The state was sued and now the products are temporarily allowed while the court case plays out.

When it comes to delta-9, the chemical compound most often associated with marijuana’s high, the substance is legal if it’s below a 0.3% concentration — making it hemp — but it’s sometimes hard to know if the products are actually below the limits.

Even the laws around age limits for buying delta products are confusing. Some stores and law enforcement say you must be 21, other in the field say there are no age requirements. The Texas Department of Public Safety did not immediately comment on regulations, including age limits. Some boxes of products purchased by the Star-Telegram place age restrictions at 21, others say 18 or that the products shouldn’t be sold to people who are “underage.”

Austin Zamhariri, the executive director of the Texas Cannabis Collective, stressed he’s not an expert in the area of compliance, but said he’s unaware of any age limits mandated by the state for the delta products.

“I think that’s the key issue people are concerned with,” he said in a text, soon adding, “I believe most establishments are self regulating in that arena. A lot of the packaging I see clearly says no purchase under 21.”

Only two things are clear, Snyder said: Texas has limited access to medical marijuana and recreational use of marijuana is illegal.

“Everything in the middle gets really murky,” Snyder said.

‘A crazy new world’

The emergence of delta products has caused some challenges for probation officials like John Choate in Wise County.

He described scenarios in which people on probation say they are using delta-8, but are testing positive for marijuana. The question becomes: Are they actually using delta-8, which is legal and should not cause a positive test for marijuana, or are they just saying that to try and avoid getting in trouble for using marijuana?

“It’s up in the air — are they using delta-8, is it THC? We treat it the same,” said Choate, the county’s director of adult probation.

But he has a theory. If these products are staying on the market, he suspects the delta-9 THC level in them may be higher than the legal limit. Why would people be buying them if they didn’t work — if they couldn’t get high?

“I would assume that yes, indeed, we’re seeing a ton of them that are higher than that,” Choate said. “Our problem is, the police can’t go into every one of these little stores and test all of their marijuana … or whatever it is, delta-8. They couldn’t go in and test all that, shut down all the people that are selling it. It’s just kind of a crazy new world.”

The Star-Telegram used SwabTek kits to test a number of delta-type products — delta-8, -9, -10 and -11 — purchased across Tarrant County, including near schools.

Two products came back showing as above the legal limit of delta-9, the chemical that is typically associated with marijuana and the chemical that Texas and the U.S. use to distinguish marijuana and hemp. Cannabis contains a number of other chemicals, like CBD, which can be bought legally and is known for medicinal qualities.

One of the products that returned positive was sold as delta-11, which means it could have been a false positive since the test looks specifically for delta-9. The Star-Telegram tested seven oils and four gummy products. The kits were better equipped for the oils given they’re heated and color-change observed, and the gummies contained dye in bright colors like green, purple and red, which can make the results harder to read.

Several probation offices in North Texas said those on their caseload are, following court instruction, barred from using delta or CBD products, including those that can be bought legally.

“Even though it may be legal in Texas, it still doesn’t mean that a judge can’t order a person on probation not to use it,” said Toby Ross, director of the Denton County Community Supervision and Corrections Department. “For example … alcohol is legal, but every DWI client that we have is ordered not to drink alcohol.”

THC products cause problems for schools, law enforcement

Tim Ulrich, a school resource officer at Keller High School, has firsthand experience with products testing as marijuana unexpectedly. In presentations for students and parents he shares the example of a product that purports to be in compliance with Congress’ 2018 Farm Bill.

“It has all these things on there that make it sound like a legal product for you to be in possession of,” Urlich said. “I sent this product off to a lab to get tested and it came back five and a half times above the legal limit of delta-9 in it.”

Ulrich has a safe with 20 to 50 vaping devices found in the school. He’s had 15 instances of students caught vaping.

“This year I’ve dealt with more THC products than I have in any years passed,” Urlich said

The Northwest school district declined to make anyone available for an interview but said in a statement that THC-related products are being seen with high school and some middle school students. The district is looking into testing options, but does not have the capability.

Darren Brockway, the Azle school district’s chief of police, said the district has installed sensors in bathrooms at the junior high and high schools that detect THC.

School officials have also testified before House lawmakers that students caught with the products are being sent to alternative campuses, which can disrupt their learning.

Sgt. Brad Pearce, a supervisor in the Arlington police department’s narcotic unit, said the department has done independent lab tests on hundreds of THC products and has found that the THC concentration in vape cartridges are often above 85%-99% delta-9 THC, well above the legal amount.

Comparatively, marijuana plant material averages 15%-25%, he said in a written statement.

“THC offenses in Arlington are now the most common controlled substance cases and have nearly doubled year after year,” he wrote. “Among students, THC is almost exclusively the drug of choice because of its concealability in edibles and compact vape pens. Any product containing greater than 0.3% Delta-9 THC is ILLEGAL in Texas regardless of what the packaging or label may indicate.”

Lawmakers react to THC market

Rep. Moody, an El Paso Democrat, and Rep. Stephanie Klick, a Fort Worth Republican, have been leaders in the push for expanded access to cannabis in Texas, each working from, as Moody would put it, their own “lane.”

While Moody, an attorney, has focused on the criminal justice system and legalization, Klick, a nurse, has pushed to expand Texas’ limited medical marijuana program.

Both were in office in 2019. Neither recall discussion about the potential rise of delta products.

“It wasn’t something that really came into the conversation at any one point,” Moody recalled.

Klick said, “I don’t think as many people saw the Delta issue as they did the CBD.”

Flash forward four years, and she’s concerned about the delta products readily found in Texas stores, outside of the state’s medical option. She knows products prescribed through the state’s Compassionate Use Program are being tested.

“They’re tested for heavy metals, for pesticides, truth in labeling — that it does contain what it says it contains in the labeling. These products, they don’t do that,” Klick said.

Two shop employees interviewed by the Star-Telegram stressed that they do test their products and follow rules that are in place. That includes including links to third party lab reports of products. Some stores self-regulate and hold themselves to a higher standard, Moody said.

“And that’s good, and I’m glad that some people do that in the marketplace,” Moody said. “Some don’t. And so that’s something that probably needs to be ferreted out.”

The 2019 hemp bill that passed in Texas requires a license for manufacturing of consumable hemp products. The products must also be tested for THC concentration before being sold, the law states. The measure requires the Texas Department of Public Safety to do random testing of products containing cannabidiol oil, also called CBD. The department declined to comment on delta products and their regulation, citing pending litigation.

Some lawmakers are calling for tighter regulations. Klick said a more organized testing program is needed for the consumable products. Tinderholt, the Arlington Republican, favors a regulatory body similar to the Texas Alcoholic Beverage Commission that could test what’s being sold for quality control.

Tinderholt, the Arlington lawmaker, sees a place for the products in Texas, recalling the story of a girl who had frequent seizures that prevented her from doing things like driving and going to prom. CBD products offered relief and changed her life, Tinderholt said.

“But the problem comes in where we have these stores that, right now, there’s not really a regulating arm that can go in and test what they’re selling,” Tinderholt said. “I’m just, I’m not convinced that all these stores are legit.”

Instead, the push seems to be to just make the products illegal, Moody said. That’s the wrong direction, he said.

“I don’t know how in the world you’re going to enforce any of that,” Moody said. “I don’t think it’d be a good use of resources. … I think it would be smarter to just regulate and understand the quality of the product that’s being put out into the community.”

‘Come and clean out the market’

A number of hemp and marijuana-related bills have been filed by Texas legislators and are at various stages of the law-making process as the Legislative session nears its end. But the two bills most directly related to the regulation of Delta-8 and like products appear to have stalled in the Legislature’s final weeks.

A proposal by Rep. Nicole Collier, a Fort Worth Democrat, targets “hot hemp” — products that are labeled as legal hemp but test positive for marijuana. It would be a defense from prosecution if a person caught with the “hot hemp” thought they bought it from a reputable store and it was labeled as legal.

“Law abiding consumers will have protection from serious legal consequences that can follow a possession charge,” Collier told lawmakers during a hearing.

The legislation hasn’t moved out of House Criminal Justice committee, where it’s sat for weeks. Collier declined an interview request.

Another proposal by Sen. Charles Perry, a Lubbock Republican, has yet to get a committee hearing. The Legislature is scheduled to adjourn May 29. Klick has filed an identical bill in the House, but it too hasn’t gone before a committee.

The bill would reiterate the ban on selling or using delta-9 products above the limit distinguishing them from marijuana and extend that ban to other delta products. The bill regulates the products’ transportation, among other elements of its sale and use. It would also require consumable hemp products sold be “generally recognized as safe” by the U.S. Food and Drug Administration.

The bill has been criticized as bad for the hemp industry and for not including age limits for buyers or testing requirements for out-of-state sellers.

Asad Shalami, who founded ZAR Wellness, a chain that sells hemp products across Texas, wishes the government would come and “clean out the market.”

He said his business works to follow laws, have products tested and make sure they work for customers, most of whom are dealing with pain, sleeping troubles, anxiety, PTSD or depression. He noted that state officials have come into the shops before to test products.

There’s a lot of “trash” on the market, products that don’t work because they’re diluted or cut with another substance, Shalami said.

“It gives all of us a bad name.”

‘The horse has left the barn’

Romero, the Fort Worth representative, calls the delta products a “loophole” drug and said he’s had conversations with members about what can be done to regulate the products. That conversation always evolves to the same subject, he said: Marijuana legalization.

“Can we legalize marijuana, deal with decriminalization, do all these things that we could have done, should have done a long time ago, so you don’t create this other market, this loophole market?” Romero said, sitting on a wooden bench in a back hall outside the House chamber.

Zamhariri, with the Texas Cannabis Collective and an employee at Thrive Apothecary in Fort Worth, agrees legalization is the best direction. Lawmakers didn’t understand all of the different chemicals in cannabis that can cause psychotropic effects when they legalized hemp production and based the definition of hemp on just one of the many chemicals in the plant, he said.

Trying to reverse course and bar use of the products would be messy and expensive, he said. Legalizing marijuana on the other hand would allow for regulation and taxation.

A fiscal note from the state found that the pending bill to legalize marijuana would result in the state losing $1.4 million through fiscal year 2025, but long term could generate nearly $144 million through fiscal year 2028.

“The state is really operating in a detriment because of the money that they’re pouring into enforcing these laws … and from the net loss that they’re losing from not actually legalizing, regulating and taxing,” Zamhariri said.

Just two days prior a House committee had heard a long-shot legalization bill and the full House passed a measure to reduce the criminal penalty for possessing a small amount of marijuana.

The decriminalization proposal passed with little fanfare. Lawmakers called out “aye,” indicating support and the chamber quickly moved on to its next item. Similar bills have passed the body in the past but stalled in the Senate.

Legalization faces little to no chance in Texas this session, in a state where elected officials have largely favored an incremental approach to medical marijuana over full recreational legalization.

But when it comes to the delta products, it’s too late, said Moody, the El Paso Democrat who authored both the legalization and decriminalization marijuana bills.

“The horse has left the barn,” he said. (Full Story)

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