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Delta 8 THC product raising questions about legality, local prosecutions

A Bryan woman was arrested over the weekend for possessing Delta 8.
Published: Oct. 5, 2021 at 5:19 PM CDT
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COLLEGE STATION, Texas (KBTX) - The growing debate around THC products is casting a big shadow over some new merchandise at area smoke shops and CBD stores.

Delta 8 is a THC product you can buy, but there are local concerns about the legality of it.

On Saturday a Bryan woman was arrested for felony possession after police say she had Delta 8.

“I think because Delta 8 is THC that’s where the gray area is. Because it’s within the legal limits of what you can take, that’s what makes it legal in the 2018 Farm Bill,” said Kim Augsburger who owns CBD American Shaman in College Station.

She says some people use it for things like pain management, anxiety or help with sleeping.

Augsburger says their products are below legal limits for THC and they have packaging that can be scanned to show law enforcement the contents.

“For about the first six months or so that Delta 8 was a big product in the market I was very leery. I’m a rule follower... I didn’t want to sell a product that was well over the 0.3 percent [THC] which is legal in the State of Texas,” she said.

You have to be 21 years old to purchase Delta 8. Here at Kim’s store she has anyone purchasing the product sign an acknowledgment form, letting them know that they will test positive on a drug test by using it.

The problem police and prosecutors are finding is determining just how much THC is in Delta 8 when they find it. There are also limitations on testing for it.

“A lot of the products that are out there you can’t tell what’s in them,” said Augsburger.

“It is a really confusing mess and everybody is scratching their head really, of which of these are legal and which of them are not legal,” said Peter Stout, Ph.D., President and CEO of Houston Forensic Science Center.

“Delta 8 THC derived from hemp is kind of this gray area. It may be legal, but Delta 8 derived from marijuana would be still illegal. I can’t tell you the difference nor can anyone else,” said Stout.

“Delta 8 is a controlled substance and at least in Brazos County if you are in possession of Delta 8 you will be prosecuted. Now they will still likely do that 0.3 percent threshold and it may come back from the laboratory less than 0.3 percent. In which case the prosecution can decide not to go forward, but that’s after you’ve been arrested, you’ve hired a lawyer,” said Shane Phelps, KBTX Legal Analyst.

Phelps currently has a client who’s facing charges after buying Delta 8 online.

“My strong advice to anyone in your listening area is not to possess THC,” Phelps added.

Brazos County District Attorney Jarvis Parsons wasn’t available for an interview Tuesday, but said by phone the situation with Delta 8 is complicated.

Law enforcement in Brazos County say they are handling Delta 8 on a case by case basis. They encourage you to keep the original packaging and receipts and keep it unopened if traveling in a vehicle.

The Legislature looked at banning Delta 8, but those efforts failed this past session.

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