In the wild world of cannabis sales, legality varies massively by state and product. In Texas, recreational marijuana is still illegal (despite some local variations on enforcement policy), but then there’s Delta 8 THC, CBD, and all the oils, gummies, and flowers that contain them. With all these products popping up on store shelves, knowing what you can and cannot possess has become more nebulous than ever in the state of Texas. 

You have most likely seen the legal forms of cannabis on sale in the corner of your local gas station, smoke shop, or even in supplements on the shelves of your grocery store. All of which look like and are marketed as marijuana products, but are in fact part of the advent of CBD, a non-psychoactive cannabinoid from the hemp plant that has taken hold even in the most conservative states. It feels like, with half of the country green-lighting medical and recreational THC, that legal marijuana has finally made its way down to Texas – but it hasn’t. Only industrial hemp, and therefore CBD, is legal. 

The larger problem is that neither police nor scientific experts are currently able to test with any accuracy the levels of THC or CBD in cannabis (whether that be hemp or marijuana) products. In the state of Texas we are in a sort of limbo wherein industrial hemp is perfectly legal, but psychoactive marijuana is not, and bad testing technology means police can’t always tell what’s what. 

What does this mean for you? You could become a victim of institutional apathy and junk science; and if you aren’t careful, you could be busted for buying and possessing perfectly legal cannabinoids. Let’s take a closer look. 

The difference between CBD and THC explained

CBD and THC are the two most common cannabinoids found in both the marijuana and hemp plants. Hemp, which is now legal in Texas, produces a high concentration of CBD with a very low amount (legally up to .03%) of THC. Marijuana production is essentially the inverse, yielding high amounts of psychoactive THC with a low concentration of CBD. Thanks to Texas House Bill 1325 it is legal to produce, manufacture, and sell industrial hemp crops and products — this includes those CBD gummies or pre-rolls, so why should you worry about carrying it?

Well, and this is where it begins to get technical, CBD and THC have the same chemical makeup. They have identical molecular formulas, and their molecular masses only differ by .003 g/mol.

The margin for proper identification of industrial hemp products containing CBD, chemically and physically speaking, is razor-thin, and Texas law enforcement is still prosecuting for its identical twin marijuana as fervently as ever before. If you find yourself unfairly accused of marijuana possession, it will be vital that you work with a lawyer-scientist capable of debunking bad science.

Chromatography and mass spectrometry

When we say junk science, what we are really talking about here is the effectiveness (or lack thereof) of gas/liquid chromatography/mass spectrometry in deducing which, and exactly how much of, these two cannabinoids are present in any given product, blood, or urine sample.

Chromatography is the process of separating a mixture into its individual components using either a gaseous or liquid sample, and mass spectrometry is essentially the process by which those findings are analyzed. Historically, samples sent to the lab would be tested to determine if they contained any THC, otherwise known as quantitative testing. If THC was present, it was marijuana, cut and dry, you would go to jail and you would not pass Go. Now, with the advent of legal CBD products containing up to .03% THC, the qualitative test has been rendered essentially useless for the purposes of unambiguously identifying illegal marijuana. Laboratories everywhere now need to carry out more expensive and experimental tests to determine not only if THC is present, but how much is present, a process called quantitative testing. Unfortunately, these quantitative tests bring about a bevy of problems, and the science has yet to catch up with the tangled legislation.

False positives For THC, unknown agents

Even the best scientists in the world can’t seem to reliably achieve quantitative accuracy. The University of Frankfurt recently discovered an “unknown interfering compound” that is structurally related to the THC metabolites being tested that has severely impacted their ability to develop assays for cannabinoids. Just one example of isobaric interference, which occurs when equal mass isotopes are present in the same solution being analyzed, giving liquid chromatography/mass spectrometry the fits. Another study from the University of Limoges saw a common hypnotic render false positives for LSD and cocaine, which are obviously even less similar than THC and CBD.

Many State Crime Laboratories do not do quantitative analysis at all; they perform a qualitative analysis to determine if THC is present in any way, which, in the case of perfectly legal industrial hemp, it is, and label everything as a Schedule IV controlled substance. This is obviously problematic, but there is little urgency around resolving the issue. The system is so clogged up with CBD cases that it has caused some smaller municipalities to totally stop prosecuting for marijuana until a reliable solution is found.

Does this mean that you should feel free to carry either THC or CBD products with impunity? Believing that your local law enforcement does not have the technology, or that the charges will not stick, is an oversimplification of the problem, and you should arm yourself with knowledge and legal counsel whenever applicable.

However, even if those municipal laboratories did have the funding to add the additional chemists and immense amount of technology required to perform quantitative testing, it wouldn’t be enough. The standard means of analysis (collision-induced dissociation by electrospray ionization) are not alone sufficient to discriminate between THC and CBD, they are too similar molecularly. Many believe that determining the difference between THC and CBD is not possible without support from other factors, many of which are still considered experimental. The problem is thus rendered extremely complex, with science playing catchup right beside the law.

CBD and false positives on drug tests

As previously stated, CBD products may (and often do) contain up to .03% highly fat-soluble THC, which means that it is transported in your bloodstream and stored in fatty tissues. That .03% THC in commercial CBD products can build up over time and trigger a positive result for marijuana on a drug test, even if you are only using legal CBD products; so be aware of prolonged use.

Beyond that, recent studies have shown that cannabidiol (CBD) can convert to D9-tetrahydrocannabinol (D9-THC, or just THC) during plasma analysis using a hot GC (gas chromatography) injection. Why is this important? Gas chromatography is one of the most common methods for quantitation of CBD and THC levels used around the world and is often chosen over liquid chromatography in these types of tests because it is less expensive — so you can bet this will be what they are using in the municipal laboratory.

So, one more time for the people in the back, CBD can convert to THC during the testing. Just another way in which not only the true concentration but the actual chemical makeup, of CBD products is obfuscated by dubious science and lack of technological investment.

Facing unfair marijuana possession charges? Thiessen Law Firm can help.

The police now have a problem, and it can easily become your problem too. 

Law enforcement has been using the odor and appearance of marijuana to develop probable cause for arrest since the 1930s when possession of any amount of illegal plant matter was enough to arrest, seize, and search anyone or their property. Now, legal industrial hemp and illegal marijuana look and smell the same, and there is currently no field test for law enforcement to distinguish between the two, making it impossible for police to use sights and smells to establish probable cause. Police narcotic K9s cannot tell the difference between the two, paraphernalia used for either look and smell the same, and as we have discussed, even the science behind their differences is riddled with smoke and mirrors.

This is not to say that the police won’t seize your property and take you to jail for possession (no matter the legality of the product), they will, but with the science on your side, you can make it a fair fight.

As a lawyer-scientist, I can make the science work for you and not against you. If you find yourself holding the bag, whether that be CBD or THC, stay quiet and call me and the team at Thiessen Law Firm at 713-864-9000 or contact us online to schedule a free consultation.

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Thiessen Law Firm

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.