Legal Marijuana, In All 50 States—No Legalization Required? How Hemp Companies Are Hacking Federal Drug Laws.
Texas, home to some of the most punitive marijuana laws in the United States, is also home to more than its fair share of companies dealing in hemp and CBD products—which, thanks to the 2018 Farm Bill, are legal in all 50 states (even Texas).
Hemp and marijuana are both cannabis, but the distinction is a matter of law, not botany. Marijuana (illegal) has more than 0.3 percent THC by dry weight, according to the 2018 Farm Bill; hemp (legal) has 0.3 percent or less. More to the point: Marijuana and THC get you high. Hemp and CBD do not.
Or so the distinction is supposed to go. Because if what Lukas Gilkey is telling me is correct, the hemp-derived gummy I have in my hands—and am about to put into my body—is one of a wave of cannabis products that can get you high while remaining legal in all 50 states.
Lukas Gilkey, CEO of Austin, Texas-based Hometown Hero CBD.
Gilkey is CEO of Austin-based Hometown Hero CBD. Hometown Hero sells CBD products as well as products containing Delta-8 THC, a synthetic molecule similar to the federally banned Delta-9 THC found in the cannabis plant. (Whenever you see references to “THC,” it’s almost always Delta-9 THC.)
Edibles with Delta-8 THC get you high, but states are getting hip to this and passing bans on Delta-8. But then Gilkey realized something.
The Farm Bill doesn’t outlaw all THC, it just outlaws THC above the 0.3 percent threshold. What if you extracted enough THC from hemp and put it into a gummy? Couldn’t you consume enough THC to get a buzz—and since the product came from hemp, and was just 0.3 percent THC (and 99.7 percent other stuff), wouldn’t it still be legal?
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That’s the theory behind Hometown Hero CBD’s “Select Spectrum” products. These gummies, about the size of a thick and oversized quarter, have 10 milligrams of THC and 10 milligrams of CBD—just like some of the cannabis edibles you’d find at a legal dispensary or sold illegally on the street.
But those edibles come from cannabis (or “marihuana,” if you’re the federal Controlled Substances Act). Cannabis is only legal in that quantity in states that have adult-use marijuana laws.
Select Spectrum products come from hemp—lots and lots of hemp, enough hemp to produce enough THC to get you stoned. And according to Gilkey—and Gilkey’s attorneys—all that is then perfectly legal: legal to ship across state lines, legal to buy online and at gas stations and smoke shops, and legal to do all this in all 50 states.
“I will be the first to say we are taking a big risk and putting a massive target on your backs,” said Gilkey, who claims to have spent the last year and “hundreds of thousands of dollars on lawyers” to ensure that Select Spectrum doesn’t trigger a Drug Enforcement Administration raid—and even more time on perfecting the process.
Hometown Hero CBD’s Select Spectrum mango gummies contain 10 milligrams of THC, the main . [+] psychoactive ingredient in cannabis—and they’re legal in all 50 states.
“It’s very critical how you do it,” he adds. “The Delta-9 level can never cross 0.3 percent. So we’re extracting straight into the mix for the gummies.”
And the result? “It’s the real deal,” he promised me. “It’ll put you on your ass—it’s strong. And it’s from hemp, and federally legal.”
When we talked in early August, Gilkey predicted that Select Spectrum would trigger a rush of other companies who’d reached similar conclusions. And he seems to be right, but Hometown Hero wasn’t the first to the punch. The legal loophole that allows federally legal THC products has drawn some attention, and there are a few other companies, including Utah-based Trojan Horse Cannabis, that are testing the waters, using the same legal theory.
But none of that will matter unless the product is popular. And in order to be popular, it has to work.
So does it work? Will it get you ripped? On two occasions, I put the theory to the test: once in the city, and another time on a Sunday escape to the woods. And the answer is… sort of.
Both times, I definitely felt something. An evening subway ride was pleasantly altered. I felt looser and a little loopy and silly in the familiar way when a strong edible is about to kick in… and then not much else. (These are 1-to-1 THC-to-CBD edibles, after all, and CBD is supposed to ameliorate THC’s effects.)
So I popped another one. The conversation flowed, the Spotify selection on the ride home hit a little different. Things felt enhanced.
I wasn’t sober! But was I high? And either way, did it matter?
The next week, out hiking with a friend, I packed some more Select Spectrum gummies along with my water, spare socks, and protein bars. Midway through the jaunt, old knees aching, I popped another one. (For all the hemp supposedly in these things, they don’t taste any different than your typical edible.)
I loosened up a bit, the knee barked less. They didn’t quite change the channel like the THC-only edibles I’d packed to the Mets game a few nights before—then again, I’d also had more than one or two on that occasion—but they definitely did something.
And for some people, that will be plenty. The main value-add here seems to be “a THC product that is legal in all 50 states,” but marijuana legalization has also created a new genre of personal essay: the “I ate too much edible and I got too high” narrative. And Select Spectrum’s Delta-9 gummies did not do that.
For someone looking to alter the dial of reality a bit without going too far over the edge, these might be perfect. For someone living in a state like Texas, these might be perfect. (For the rest of us, we’ll probably smoke weed.)
Marijuana laws are constantly evolving. On Sept. 1, the amount of THC allowed in CBD oil in Texas will double—from 0.5 percent to 1 percent. And there’s a federal marijuana legalization bill sitting around in the U.S. Senate, waiting for a hearing.
When the walls of federal prohibition finally fall, a THC product made solely from hemp might be too niche to compete. Until then, hemp-derived Delta-9 THC products are exploiting the cannabis industry’s main market inefficiency. And it stands to reason there will be more coming.
My Vape Pen is a Felony?
The short answer is yes, it is a felony to possess a THC Vape Pen in the State of Texas.
While it is legal to buy and possess a THC vape pen in many states, Texas is not one of them. In fact, if you get caught in Texas with a THC vape pen you can be in real legal trouble. This is because of how Texas Law defines what is and is not marijuana.
Texas Law defines marijuana (marihuana) as the plant sativa L., whether growing or not, the seeds of the plant, and every compound, manufacture, salt, derivative, mixture, or preparation of that plant or its seeds. However, Texas Law specifically excludes from this definition resin extracted from the plant and oil from the plant. See Texas Health & Safety Code Section 481 subsection 26.
Since the oil and/or resin is not considered marijuana in Texas, if you are in possession of it you are in possession of it, you can be charged with possession of a controlled substance in penalty grade 2 in Texas.
While possession of marijuana in Texas is usually a misdemeanor in small amounts, less than 2oz is a Class B Misdemeanor and 2-4oz is a Class A Misdemeanor, if you are found with a vape pen or even an edible it will be a felony, no matter the amount that you have on you.
In Texas if you are in possession of what could be classified as a controlled substance in penalty grade 2, such as a vape pen or edible the possible punishment ranges are as follows:
Less than a gram, is a State Jail Felony – 180 days to 2 years in State Jail and up to a $10,000.00 fine.
1 gram but less than 4 grams, is a Third-Degree Felony – 2-10 years in Texas Department of Criminal Justice (TDCJ) and up to a $10,000.00 fine.
4 grams but less than 400 grams, is a Second-Degree Felony – 2-20 in TDCJ and up to a $10,000.00 fine.
400 grams or more, is a First-Degree Felony – 5-99 in TDCJ or life and a fine up to $50,000.00.
As seen above it does not take being in possession of very much at all to be looking at serious time. It is also worth noting that the weight to determine what level of offense has been committed includes the weight of any adulterants or dilutants, meaning it is not just the weight of what actually contains the THC concentrate that you can be charged with.
If you have been arrested or charged with possession, please contact our office at (972) 330-2171 for a free consolation.