You may have seen the ads on social media: They promise better sleep, reduced anxiety, less pain, and even help with intimacy issues. Sounds like a miracle, right? And it gets better.

• Try them FREE!
• Ships to all 50 states!
• 100% legal!

These ads are referring to Delta 9 THC, which is the primary psychoactive compound found in cannabis plants. Delta 9 is legal in Texas, but that isn’t stopping police from arresting people who possess it. We are experiencing a spike in clients due to confusion over the law.

What is Delta 9 THC?

Delta 9 THC is found in cannabis plants. THC stands for tetrahydrocannabinol. It is the compound that produces the “high” that intoxicates you. 

Hemp and marijuana are both produced by the same cannabis plant. The reason they have different names is based on THC production.

That means legally grown hemp is just a cannabis plant that has been genetically altered to produce a product with a THC concentration below 0.3%. Marijuana comes from a cannabis plant that has more than 0.3% THC.

Whether or not that cannabis is legal depends on the name: Marijuana remains illegal in Texas. Delta 9 derived from hemp is legal (but only if the potency is below 0.3%).

Hemp-based Delta 9 THC is sold in various forms for different uses, including smoking, vaping, tinctures, oils, and edibles. Its effects can vary based on the method of consumption, dosage, and individual tolerance. 

It’s important to remember that driving under the influence of legal THC products can still potentially lead to a DWI charge. However, we also have clients who have been arrested after police found an unopened package of a legal THC product, even after they were shown proof of purchase. If this happens to you, contact us immediately.

Federal Laws on Delta 9 THC

How Delta 9 became legal – both federally and in Texas – is complicated, and the legal status depends on the potency of the cannabis plant.

Hemp-based Delta 9 is legal in the U.S. – as long as the THC concentration is below 0.3%. Marijuana-based Delta 9 is not legal in the U.S. (though it is legal in states that have passed laws legalizing it).

It’s a distinction that many people find confusing.

When Congress passed the 2018 Farm Bill, it legalized hemp production and removed hemp and hemp seeds from the Drug Enforcement Agency’s Controlled Substance Act, essentially legalizing consumable hemp products.

However, hemp production continues to be regulated by the U.S. Department of Agriculture, which established that all legal consumable hemp products must contain less than a 0.3% concentration of THC.

Marijuana and hemp are both from the same cannabis plant. However, hemp plants have been genetically altered to contain much lower concentrations of tetrahydrocannabinol.

Is Delta 9 THC Legal in Texas?

In 2019, Texas passed House Bill 1325, mirroring the 2018 federal farm bill. The intent was to expand the state’s hemp industry. It opened the door for the sale of hemp THC products. As an unintended consequence, thousands of retail shops have opened across Texas to sell hemp-based consumables, but they are restricted to a concentration of no more than 0.3%.

Texas Health and Safety Code Section 481.002(5) specifies that controlled substances do not include “tetrahydrocannabinols in hemp.” 

Texas Agriculture Code § 121.001 defines hemp as:

…the plant Cannabis sativa L. and any part of that plant, including the seeds of the plant and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta 9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.

Marijuana products are not legal in Texas unless you’ve qualified for the state’s Compassionate Use Program, which has stringent requirements.

How long Delta 9 will remain legal in Texas is unknown. The legality of all Delta THC products in Texas is being challenged in the courts and is all but sure to be addressed in upcoming sessions of the Texas Legislature.

The 0.3% THC threshold for hemp is considered arbitrary. It was established by the USDA primarily as a way to differentiate between hemp and marijuana. Plants with THC levels below 0.3% are considered non-psychoactive. 

However, that limit has important legal ramifications in Texas. It could mean the difference between carrying a legal substance or facing a felony charge.

READ MORE: Texas marijuana laws

Marijuana vs. Hemp

Marijuana and hemp have some key differences. This can often lead to confusion about which products are legal.

Only hemp-based products are legal. The use of any marijuana-based products that contain high levels of Delta 9 THC is not legal in Texas or federally. Distribution, sale, or possession of marijuana could all lead to criminal penalties. 

Here is a comparison of marijuana-derived THC and hemp-derived products:

	Marijuana	Hemp
Cannabinoid content	High levels of Delta 9 THC	Low levels of Delta 9 THC
Use	Grown specifically for its psychoactive and medicinal properties	Grown for a wide range of industrial applications, including textiles, paper, biofuels, construction materials, and food products
Legal status	Illegal under federal law and in Texas unless you have a prescription	Legal in Texas under the 2018 Farm Bill, but only if it contains less than 0.3% Delta 9 THC
Cultivation	Grown in controlled environments	Grown in fields like a traditional crop

You Could Be Arrested for Possessing Legal THC

If you’re pulled over by police and they find THC products, there’s a good chance that you could be arrested – even if the items are legal. In 2022, 24,329 Texans were arrested for marijuana possession, according to the National Organization for the Reform of Marijuana Laws. 

Many police officers don’t understand the distinction between legal weed products and those that are illegal.

And though the cops have field tests that can detect THC, those tests can’t distinguish between legal and illegal products. If they find you in possession of a vape pen or baggie of edibles, they will likely be confiscated and sent to a lab for analysis (even if you can prove that the items you purchased are legal), and you will probably be arrested and charged. 

It can take months for the testing to be completed. In the meantime, you could face felony charges and have to post bail. 

Keep Your Receipts

There are some steps that you can take to protect yourself if you’re pulled over.

• When you purchase Delta 9 items, get a receipt and save it
• Each product is supposed to have a QR code that takes you to the lab report – make sure to review it
• If you’re transporting Delta 9 products in your vehicle, ensure you have the receipt and the original packaging with the QR code
• Don’t open the packages until you’ve arrived at your destination
• Keep the items safely stored out of sight when they must be in your vehicle
• If you’re pulled over and police find Delta 9, don’t answer their questions, aside from showing them the receipt and pointing out that the package is unopened

Look for a message like this:

Don’t be surprised if you’re arrested for carrying legal products. Many of our clients have found themselves in the same situation.

You don’t have to carry a large amount to be at risk. In one case, a client was arrested and charged after police found two gummies and what might have been a mushroom in her car, even though there were no signs that she had consumed any of the items.

However, if you purchased legal items and have the packaging and receipt to prove it, we can defend you by demonstrating that you did not intend to break the law and that your belief was reasonable. 

READ MORE: Is Delta 8 legal in Texas?

You Can Still Fail a Drug Test, Even If You’re Using a Legal Product

If you use Delta 9 and have to take a drug test for any reason – whether it’s for a new job, a worker’s compensation claim, or a random test as a requirement for probation or parole – it’s possible that you may fail, even if you’ve only used legal products. Tests don’t differentiate between types of THC.

While it’s unlikely that you’ll fail due to a single use, it’s very possible to fail if you use legal CBD products regularly or at high doses.

Delta 9 Use Could Affect Your Probation/Parole

Legal Delta 9 products can also cause problems if you’re on probation or parole. That’s because you may be ordered to complete mandatory random drug testing, and if you consume any form of Delta 9 regularly, you could fail your drug test. A positive result can trigger a motion to revoke, which could land you in jail. 

Many THC Products Test Above the Legal Limit

Arrest for possessing Delta 9 can be risky. The THC level in retail products is challenging to confirm. In a recent report, Texas Monthly sent samples from eight different dispensaries across the state to a lab for testing. The report said that every sample showed Delta 9 THC levels above the legal limit, and all eight were actually marijuana.

This means that your product may be more potent (and less legal) than you’re led to believe. And if you’re arrested, the charges will depend on the amount of Delta 9 in your possession. 

If you possess fewer than four ounces of weed in its plant/flower form, you’ll face misdemeanor charges. Penalties could include a fine, community service, or even jail time. 

Any possession over four ounces is a felony. 

• 4 ounces to 5 pounds: 180 days to two years in state jail and a fine of up to $10,000.
• 5 to 50 pounds: Two to ten years in prison and a fine of up to $10,000.
• 50 to 2,000 pounds: Two to 20 years in prison and a fine of up to $10,000.
• More than 2,000 pounds: Five to 99 years or life in prison and a fine of up to $50,000.

READ MORE: Penalties and punishments for controlled substances in Texas

How to Protect Yourself

To ensure that any Delta 9 THC products you buy in Texas (or order online) are legal, verify the THC content through a certificate of analysis, confirm the product’s lab testing, check all labeling, purchase only from licensed sellers, stay informed about changes to state laws, consult the Texas Department of Agriculture, and ask questions directly to the seller.