Delta-8 seltzers have hit the shelves in Texas and they’ve caught many people off guard. These mellow seltzers have also reintroduced a slew of questions with complex answers that seem to change rapidly: Is Delta-8 legal in Texas? Does Delta-8 seltzer get you high? What happens if I get caught with Delta-8 in any form?

These questions are complicated both legally and scientifically. Weed is no longer just weed, and parsing the distinctions between Delta-8, Delta-9, and THC-O can be a major headache in both the lab and the courtroom. 

Mark Thiessen is an ACS-CHAL Forensic Lawyer-Scientist, capable of debunking bad science and navigating the turbulent waters of marijuana laws in Texas. He’s here to tell you what is the deal with the Delta-8 seltzers storming the nation and what you need to know if you ever decide to crack one open.

The legality of Delta-8 in Texas

Is Delta-8 legal in Texas? Currently, Delta-8 is legal in Texas. While Houston weed laws haven’t changed much over the last few years, Delta-8 legislation in Texas has. The history of Delta-8 THC’s dubious legality is complicated and the rules are constantly changing. 

The story starts with the 2018 Federal Farm Bill which legalized hemp products containing 0.03% or less Delta-9 THC — this then set the precedent for Texas’s House Bill 1325 which allowed the sale of these hemp products containing 0.03% or less Delta-9 THC. Delta-9 THC is the active ingredient in cannabis, and can, for the purposes of this story, be thought of as regular old weed. Is Delta-9 legal in Texas? Yes, in hemp products with concentrations under 0.03%. So traditional marijuana is still illegal — and prosecuted — in Texas.

Then there’s Delta-8, which is hemp-derived, supposedly less psychoactive, and now technically legal. Texas legalized hemp products that were legal on the federal level, and Delta-8 THC — because it contains 0.03% or less Delta-9 THC — was not legal on the federal level. The Texas Department of State Health (DSHS) attempted to reject the changes made by the farm bill in order to put Delta-8 THC back on the controlled substances list. 

The DSHS attempted to secretly ban the sale of Delta-8 THC without informing citizens, businesses, or relevant stakeholders — and succeeded, for a time. That is until the court granted a temporary injunction that prohibits the ban put into place by the DSHS, making Delta-8 temporarily legal to buy and sell in Texas. 

What’s the difference between Delta-8 and Delta-9 THC?

As mentioned above, Delta-9 THC is the active component in traditional weed, essentially what gets you high. When people talk about THC, or really weed in general, they have historically been talking about Delta-9.

Delta-8 THC is a mildly psychoactive substance also found in marijuana and hemp. Delta-8 THC is one of over 100 cannabinoids produced naturally in cannabis plants in small quantities, but that can be derived (synthesized) from hemp-derived cannabidiol (CBD) to yield higher percentage products. Delta-8 seltzers exist in a small, gray window between both the effects and legality of federally legal hemp and illegal marijuana. 

Knowing the origin story doesn’t necessarily help you with practical concerns about things like getting pulled over with weed in Texas or driving on Delta-8 seltzers, so we’ll address those topics next. 

Does Delta-8 seltzer get you high?

It sure does. Just like smoking Delta-8 flower or oil, although Delta-8 seltzer effects may be a bit more measured. Delta-8 THC does have intoxicating effects, although many people report that it is less psychoactive than traditional Delta-9, often describing it as a “lighter” high or a mellow feeling. 

However, like traditional THC, you’ve still got to be careful with it, and you should not drive a motor vehicle while under its influence. Some commonly reported Delta-8 seltzer effects include:

  • Pain relief
  • Euphoria 
  • Relaxation
  • Red eyes
  • Dry mouth
  • Slower reaction time
  • Reduction in coordination
  • Anxiety
  • Memory loss

How long does it take for Delta-8 seltzer to kick in? If you’re wondering if you should crack open another one or wait and see, a good rule of thumb for absorption is to wait 15 minutes to an hour to feel a can of Delta-8 seltzer’s full effect.

What happens if you get stopped with a Delta-8 seltzer?

There are a few points of concern for those getting stopped with Delta-8 in any form. The first being Delta-8’s dubious legality on the state level. You never know when the Delta-8 legislation in Texas will change, suddenly rendering a product that you purchased legally in storefront contraband that can land you in jail. 

Delta-8 seltzers are probably fine, as long as you aren’t drinking them in the car or otherwise intoxicated during the stop. Canned beverages pass the eye test, which leads us to the other concern looming over temporarily legal Delta-8 products: Police can’t tell the difference between Delta-8 and Delta-9 THC. While they may trust that a local brewery is not breaking federal laws in seltzer production, that trust does not extend to the mystery buds rattling around in your backpack, or the oil pen in your car door. 

Traffic cops aren’t the only ones that can’t tell the difference between the stuff, the folks in the lab can’t either. The technology used by law enforcement toxicologists cannot with any accuracy determine levels of Delta-8 and Delta-9 in a substance because of the similarities between them. What do they do instead? Charge whoever they want with possession of marijuana, no matter what the actual substance is. What happens if you get caught with CBD bud? You could go to jail for a perfectly legal substance — that is if you don’t have a lawyer who knows both the law and the science behind cannabis arrests. 

Continue reading: What happens if you get caught with weed in Texas?

Delta-8 seltzer and other Delta-8 products are temporarily legal, but don’t pay the price for a police mix-up!

The sale and consumption of Delta-8 seltzers in Texas is temporarily legal, but don’t let that give you a false sense of security. If you are driving, keep the Delta-8 seltzer sealed until you get home. Better yet, keep it in the trunk or in the back seat as you would an alcoholic beverage. 

Delta-8 THC might not be legal for long — and even if nothing changes, the police can’t tell the difference. Moral of the story, it’s better to be safe than in handcuffs when it comes to these products. Act responsibly and have an experienced drug attorney’s number handy.

Mark Thiessen doesn’t just know the science behind the wild world of cannabis, he also knows the police playbook, and how to get a possession charge dismissed. If you or a loved one has been arrested with Delta-8 or hemp products on suspicion of possession of marijuana, tell them you want to talk to your lawyer, use your right to remain silent, and call Mark Thiessen of Thiessen Law Firm ASAP. 

Call Thiessen Law Firm today at 713-864-9000 or contact us online for a free case evaluation.

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Mark Thiessen is an aggressive trial lawyer best known for his devotion to justice for his clients and high rank as a DWI Super Lawyer in Texas.