High time to tell the truth about CBD
You have probably noticed retail stores offering CBD products popping up practically everywhere since 2018 and 2019, using clever images and phrases to indicate that CBD — a completely legal extract of the hemp plant — might offer an effect similar to marijuana.
My 12-year-old daughter recently asked me about a billboard near our house.
“Daddy, what does it mean when the sign says ‘Smokerz: Don’t leave hemp-ty handed?’ ”
Kids ask the darndest questions.
So much I didn’t know
I explained to her what I knew from my very limited experience with cannabis. But I didn’t know then what I know now.
Until very recently, I thought CBD was a kind of marijuanaadjacent, mostly placebo product derived from legal hemp, that people would take and then semi-imagine getting some relaxing effect. Or maybe it had a mild effect, but nothing like actual pot.
I was wrong. But explaining how I was wrong takes some telling.
There are many claims about legitimate medical uses for CBD, including treating anxiety, depression, pain and insomnia, as well as suppressing appetite. But the U.S. Food and Drug Administration basically hasn’t evaluated these medical claims, and it’s only approved medically in Texas for a rare genetic disease that causes seizures.
To me, though, that has always sounded like noise. I continue to believe the attention given to CBD is driven primarily by the somewhat universal human interest in getting high.
And that prompts the question: Do products in CBD stores get you high?
Legal issues, technicalities
The federal farm bill made hemp legal in 2018, and Texas followed suit in 2019. The legal distinction between marijuana and hemp — both derived from the same species of cannabis plant — is the concentration of the psychoactive extract THC. In Texas, a product that contains less than 0.3 percent THC by weight is considered legal hemp, while one that exceeds 0.3 percent THC is considered illegal marijuana.
CBD, short for cannabidiol, is one of many cannabis plant extracts, as is THC. So is HHC, which is sold in CBD stores and has psychoactive properties similar to traditional marijuana.
Around 2018, hemp-derived CBD products started out much as I thought they were — basically, pot’s equivalent of nonalcoholic beer. Today, however, that is not what people are buying in CBD stores. I’ll get to that.
While marijuana remains illegal, enforcement in Texas varies.
Shortly after Texas legalized hemp in 2019, the district attorneys in Harris and Bexar counties announced they would not prosecute most cases of marijuana possession, citing fear of not being able to distinguish between hemp and marijuana without rapid and accurate testing. In 2020, the Austin City Council ended arrests, fines and testing for marijuana possession, further effectively decriminalizing use, at least in big cities in Texas. People could claim they were holding legal hemp, so law enforcement drastically reduced arrests.
The Delta difference
Enter Delta-8.
Around 2019, hemp manufacturers figured out how to produce a cannabis extract called Delta-8, which has some psychoactive properties, kind of like THC. But because it has less than 0.3 percent THC, it’s technically not marijuana. That became the main product sold in CBD stores, and it wasn’t a placebo. It was sold in leaf, vape and edible forms.
In 2020, the Texas Department of State Health Services attempted to ban Delta-8 through a regulatory publication. The hemp industry in Texas filed a lawsuit led by Austin-based Hometown Hero, a CBD retailer. In November, the industry won a court-ordered injunction against the Health Services Department’s ban on Delta-8, ensuring its continued legality, probably at least until the next legislative session.
In late 2021 and early 2022, CBD manufacturers — whether as a workaround to the temporary Delta-8 ban in 2021 or as a natural evolution of the industry — began to introduce edible products with a cannabinoid called Delta-9. Now, Delta-9 is just another name for THC, according to an industry manufacturer who insisted on speaking off the record. But in a heavy enough edible, the concentration of THC per dry weight can be kept under 0.3 percent, rendering it legal under current rules. Delta-9, because of this THC dry weight ratio, can’t be sold in leaf or vape forms, which are too light to circumvent the rules.
Getting stoned legal here
Here’s the main thing I learned: Delta-9 in a chocolate bar, sold legally and openly in the first CBD store I walked into, gets you stoned.
I know this because, as a professional, I dedicated a Sunday afternoon in mid-July to doing my research. I did not operate — nor could I have even remotely imagined operating — heavy machinery during that hazy afternoon.
When I returned to the CBD store a few days ago, the kid behind the counter confirmed that the majority of store customers buy Delta-9 products — essentially, legal pot in Texas in edible form.
This week, I asked a couple of regular marijuana users I know whether they have switched to using Delta-8 or Delta-9 products from a CBD store instead of illegally acquired marijuana. Neither had done so, citing the practical ease of acquiring illegal marijuana and the low risk of possessing it in a low-enforcement city. But they also weren’t aware of the potency of the CBD store-bought products as I described it to them.
Texas Agriculture Commissioner Sid Miller this month called for legalizing marijuana for medical use, although that is unlikely to move forward under current state leadership. Miller cites more than 850 hemp-growing or -processing entities in the state under the commissioner’s licensing purview. It’s a big and rapidly growing industry in the state.
But what I’ve learned this month is that the hemp and CBD industry in Texas has made legalizing marijuana irrelevant. Delta-8 and Delta-9 are just technical workarounds for pot. Your fellow Texans are getting high whenever they like with products from their neighborhood CBD store.
This is a peculiar snag in the situation that Texas has gotten itself into by not facing national trends. While I understand it is in service of preserving some conservative value around avoiding intoxication, marijuana is legal in most of the country. And as Texans, we are not getting the benefits of taxing marijuana to fund state coffers, the in-state economic development of the product and the honest reckoning with legalization.
But that train has left the station. I’m a little late in understanding what is clear to me now: Getting stoned from cannabis is already legal in Texas.