Texas is in a legal battle with companies over a THC market that has exploded in the last year or so following enactment of federal and state laws that legalized hemp. In the middle of it all are military veterans who are seeking relief from physical and emotional pain and rely upon cannabis to deliver it.
Companies like Hometown Hero CBD believed that under state and federal law, they could use chemical processes to create hemp-derived THC products like delta-8 THC, the less potent chemical cousin of the chief psychoactive component in weed, delta-9 THC. But in October, the Texas Department of State Health Services (DSHS) posted a notice on its website saying that THC isomers from hemp, including delta-8, were Schedule 1 controlled substances, effectively banning the products.
Manufacturers and retailers faced a huge loss to their bottom lines. Users who relied on isomers to treat a number of medical conditions lost access to products they say help them avoid taking dangerous, addictive narcotics. Texas' highly restrictive medical cannabis program is expensive, more difficult to access and doesn't offer the same products that provide them relief, advocates for the isomer market say.
So, Hometown Hero sued and fought to have the state’s ban halted while they waited for their day in court.
At a hearing for a temporary injunction on the ban, Hometown Hero provided testimony from chemists to explain the science behind THC isomers, chemical compounds that share the same formula but differ in their structure and effect. It offered up business owners who explained how the ban will affect them, and veterans who testified that they rely on the products for ailments like PTSD, anxiety and chronic pain.
At the hearing, Mitch Fuller of the Veterans of Foreign Wars (VFW), said he consumed delta-8 himself and that he has an agreement to have a vending machine with the products at his VFW Post 10427 outside of Austin.
Since DSHS posted the notice on its website, the vending machine has been shut off and emptied. Fuller said he’s noticed an uptick in mental health issues in his veteran friends since the products have been removed.
The state's attorney asked if Fuller was a patient with the Texas Compassionate Use Program (TCUP), the state’s medical cannabis program. He's not a TCUP patient, he said, but he’s heard from others that the program is cost prohibitive.
David Walden with the VFW testified that he was injured in combat and consumed delta-8 products for back pain and PTSD. He said he was addicted to opioids until he came across CBD and delta-8. There was a vending machine at his VFW post until DSHS said the stuff was illegal.
Without delta-8, Walden said his pain and anxiety levels have increased, and he’s had to consider returning to PTSD therapy.
District Judge Jan Soifer in Travis County issued a temporary injunction blocking the DSHS ban, but it was quickly suspended when the state appealed. Hometown Hero is working to get the injunction reinstated.
“I think the medical program in Texas is really just trying to appease the cannabis voters, but in the same breath, I don’t think it’s properly [serving] the people that it’s meant to serve, like veterans,” Lukas Gilkey, founder and CEO of Hometown Hero, said. Gilkey is also a veteran.
“We’re finding that a lot of people that are looking for medical relief from cannabis in Texas are gravitating toward the hemp products and not even using the medical program products,” Gilkey said.
The state’s medical THC program is often called the most restrictive in the country. The National Organization for the Reform of Marijuana Laws doesn’t even recognize Texas as a medical marijuana state because there are so many limitations.
This was especially true in the program’s infancy. Texas has three licensed dispensaries overseen by the Department of Public Safety. Texas Original Compassionate Cultivation is the only one located in Texas. The other two are in Florida and Georgia.
Morris Denton is Texas Original Compassionate Cultivation’s CEO. His company was one of 43 applicants for TCUP licenses in 2017, when TCUP was initially very narrowly crafted for one condition, intractable epilepsy. They could make only products containing no more than 0.5% delta-9 THC, and they had to have a 20:1 CBD to THC ratio. (CBD, or cannabidiol, doesn't get users high and offers several medical benefits, advocates say. It's also the precursor for delta-8 synthesized by manufacturers.)
“Our medicine was extraordinarily specific for a very specific condition,” he said. “In 2019, the market expanded to include other eligible conditions, and in 2021 the market expanded again and added a couple more conditions and then increased the allowable [THC] threshold from 0.5% to 1% by weight. So, we’ve seen the program grow over time, slowly but surely.”
“I think the medical program in Texas is really just trying to appease the cannabis voters, but ... I don’t think it’s properly [serving] the people that it’s meant to serve, like veterans." - Lukas Gilkey, founder and CEO of Hometown Hero
Today, the program is open to people with epilepsy, seizure disorders, multiple sclerosis, spasticity, amyotrophic lateral sclerosis, autism, cancer, PTSD and incurable neurodegenerative diseases. As of September, the TCUP products can now have up to 1% of THC.
“The number of new patients has grown consistently since Sept. 1,” he said.
Denton said there are many misconceptions about TCUP. For one, the products his company creates aren’t exactly “low-THC.”
The cap on delta-9 THC for the medical program and in the hemp market is measured as a percentage of a product's dry weight. With the 1% cap in TCUP, Denton said, “it doesn’t limit the amount of THC we can put into a single gummy or lozenge, so long as that gummy or lozenge, its overall weight is 99% or more than the THC content."
In other words, eating a big enough gummy, or enough of them, will deliver a solid dose of delta-9, and at 1% THC content, the amounts aren't that large.
“The state thinks they’re imposing some sort of limitation on the amount of THC. They’re not,” Denton said. “Furthermore, many of the doctors that are treating today’s patients, particularly those that suffer from PTSD, are prescribing 50, 60, 75, 100 mg of THC a day because that’s what the doctor thinks that patient needs in order to treat the [severity] of their condition.”
However, some, who may not qualify for the program or feel it’s too costly, have turned to THC isomers like delta-8. A 30 count pack of 10 milligram THC gummies (300 milligrams total) from Texas Original Compassionate Cultivation costs $100. One popular hemp company, 3Chi, sells a 16 pack of delta-8 gummies that have 25 milligrams each (400 milligrams total) for $30. Additionally, you can buy 28 gram containers of pure delta-8 distillate from 3Chi for about $150.
As for hemp-derived delta-9, Hometown Hero sells a $40 cereal bar with 300 milligrams of delta-9 THC.
Are any of those amounts enough delta-9 to be psychoactive and get a user high? It's complicated, but generally speaking, yes. Whether a product is smoked, eaten or vaporized will affect how much THC actually ends up in a user's body, and the effects will vary by user.
The Los Angeles Times published a handy calculator for estimating dosages. For comparison, consider a joint of a potent strain of marijuana, White Widow, that weighs the American average of 0.3 grams and contains 24% THC. Light it up, and some of the THC will be destroyed by burning or will dissipate into the air, leaving users to inhale around 27 mg of THC, and some of that will be exhaled rather than enter the bloodstream, according to the newspaper. Eating any form of THC, however, will make it more potent.
Denton said the THC isomer market has been interesting and exciting to watch. “We’re big believers in the plant. If we weren’t believers in the plant, we wouldn’t be doing what we’re doing,” Denton said. “We’re excited to see the growth of the acceptance and the adoption of all forms of cannabinoids in today’s world.”
He’s watching to see how it all shakes out in court, but said he thinks these products are ultimately good for the industry.
“The incredible acceptance of delta-8 in the market is testament to what people are searching for and what they’re looking to get,” Denton said. “THC is THC whether it's delta-8, delta-9, delta-10 or delta-100. So, if people are finding delta-8 to be effective and they’re going to the lengths they’re going to, that’s something the state needs to be listening to."
But the isomer market isn't perfect, he said.
"There’s a reason why the medical community has embraced the compassionate use program," Denton said. "It’s because of our capability to produce high quality and consistent medicine that changes people’s lives. I’m not sure that can be applied to 100% of the broader market because there’s no real regulatory oversight there."
The CBD and THC isomer industry is unregulated, which has gotten the attention of the Food and Drug Administration and the U.S. Centers for Disease Control and Prevention. The two agencies put out a notice in September saying they've seen a spike in negative side effects and they have concerns about the manufacturing processes.
Delta-8 is naturally occurring in the cannabis plant but not in large enough amounts to be psychoactive. Manufacturers convert CBD into different cannabinoids (like delta-8) with a solvent, acid and heat.
Some manufacturers could be using unsafe household chemicals to make these THC isomers, according to the FDA. On top of that, the FDA said it has no way to know if these isomers are being concocted in unsanitary environments. Additionally, since testing of delta-8 isn’t required or consistent, there’s no telling what contaminants find their way into the products and at what quantities. These could include heavy metals, solvents or even pesticides. (Some supporters of the THC isomer market say they would welcome regulation to ensure quality — perhaps from some government agency with experience in food and drug regulation.)
"So, you’ll have a lot of [products] that may or may not contain what they say it contains," Denton said. "I’m sure there are operators out there that are very good at what they do, and I think you can find them if you’re willing to do the homework."
Asad Shalami, a former Army medic and owner of CBD Zar, said the industry needs more regulation. In the meantime, it's up to manufacturers, retailers and consumers to be diligent in finding safe products.
When Shalami left the Army, he said, he had trouble sleeping and the pharmaceuticals the VA prescribed him seemed to be giving him more problems. When Shalami tried CBD, he was able to get a good night's sleep for the first time in about 10 years.
Shalami’s business started in the CBD market and has since expanded to sell THC isomers and full-spectrum products.
“Texas being a Republican state mainly, claiming to be pro veteran this, pro veteran that, for them to try to take away this natural therapy from the vets is mind-boggling.” - Asad Shalami, owner of CBD Zar
“We don’t treat it as a retail shop. We treat it more as a medical consultation,” Shalami said. They take customers through a consultation to determine what products may be a good fit.
“Some of the major reasons folks come to our stores are for things like anxiety, sleep issues, pain, depression, PTSD, and we really focus on helping veterans by making this affordable for them.”
They give veterans a discount in response to a sad statistic.
“Unfortunately, 22 vets take their lives every day. I lost about four young friends to suicide myself in the Army, and I almost became a statistic myself,” Shalami said. “In honor of that, we give a 22% discount to all our veteran clients.”
When DSHS said THC isomers from hemp were controlled substances, CBD Zar pulled all those products off the shelves. They’ve since communicated with law enforcement, which told them they weren’t worried about the THC isomer products, so CBD Zar is selling the stuff again.
But, the scare in October from the DSHS, and the market’s current state of limbo because of litigation, pushed companies to adapt. Some turned to producing and selling hemp-derived products with enough delta-9 to be psychoactive, but still below the legal limit of 0.3% on a dry weight basis.
“We’re in the same boat as everyone else. That whole delta-8 scare by the state really propelled us into investing more in our legal delta-9 line,” Shalami said. “We recently came out with a delta-9 gummy that flew off the shelves.
“Texas being a Republican state mainly, claiming to be pro veteran this, pro veteran that, for them to try to take away this natural therapy from the vets is mind-boggling,” Shalami said. “If it goes south for D8, we’re not too worried. But, for folks who basically need this as a lifesaving medicine, it’s a sad thing for the state to try to take that freedom away.”
Ben Meggs, cofounder of Bayou City Hemp Co., said pioneering the THC isomer industry in a state as restrictive as Texas has been an uphill battle.
He said it’s disheartening to be in the midst of pioneering an industry, pumping millions of dollars into research and development, only for the state to come in and ban what they’re producing. “You can’t build an industry that way. It just doesn’t work,” he said.
But it has presented interesting opportunities and put Lone Star manufacturers ahead of the curve, Meggs said.
“When you look at Colorado, California, Oregon, these states that have completely legalized recreational cannabis, marijuana, their sole focus is delta-9,” Meggs explained. “It gives the people what they want and that’s what their focus is. They’re able to make a business out of one cannabinoid.
“What’s unique about being in Texas and delta-9 being illegal over 0.3% is we’ve had to set up a business where we’ve had to do research and development to identify those other 200 cannabinoids. So, while these others are solely focused on delta-9, here at Bayou City Hemp Company in Texas, we’ve been focusing on all the other 199 or X number of cannabinoids that are out there that bring many different benefits to people in many different ways.”
Meggs believes the day will come when it’s likely all of these cannabinoids are legal.
“The market is getting bigger and bigger. There’s more capital and infrastructure being put in behind this. The lobbying dollars are going to get larger and larger. It’s very difficult to put the genie back in the bottle. It’s going to be very difficult to go backwards. Not to say it can’t happen, but I don’t foresee that happening.”
“We haven’t even begun to graze the surface, really, of all the different cannabinoids out there,” Meggs said. “DSHS is focused on isomers of THC, and that’s perfectly fine. That’s the direction they want to take this. But we have tons of different cannabinoids that bring different benefits. Some of which are psychoactive. Some of which are not.”
Meggs added, “I think as it becomes more accepted and there’s less stigma around this and states begin to accept it for what it is, I think you’re going to see a huge shift in the country and in the world related to these products.”