From the Texas Tribune:
SPRING BRANCH — When kids walk into the gas station near the high school in this rural stretch north of San Antonio, they come face to face with Texas’ booming market in psychoactive hemp derivatives.
Just inside the door, a glass cabinet entices shoppers to a smorgasbord of fruity and doughnut-flavored vape pens dressed in vibrant, shiny packaging. The store, like many across Texas, is promoting its collection of delta-8 and other new strains of purportedly legal tetrahydrocannabinol, or THC, the mind-altering part of the cannabis plant.
Any adult over age 21 can buy the vapes at this Valero. But if the Comal Independent School District catches one of its students down the road at Smithson Valley High School with a pound cake-flavored vape, they may end up in county jail, facing felony charges that would follow them the rest of their life.
School officials and local law enforcement are attempting to stymie the sometimes dangerous youth vaping craze by drawing a hard line. Students are offered $100 for anonymously reporting classmates with THC vape pens to the police.
And since sheriff’s deputies assigned to the schools often can tell if a vape pen contains THC, but not whether it’s delta-8 or the illegal delta-9 cannabis oil, they assume the worst, slap on the cuffs and leave it for someone else to figure out.
That’s what happened to Myles Leon, a Smithson Valley senior arrested at school in October with what he says was a delta-8 vape pen. At 17, he is considered an adult in Texas’ criminal system, facing a felony charge based on the as yet unproven assumption that the vape pen he was caught holding might have contained the illegal delta-9.
“They instantly just think it’s [illegal] THC. I don’t think they really care about the difference,” Myles said in December, hunched next to his mother on their living room couch. “Because even I said that it was delta-8 and it didn’t matter. They’re still gonna arrest me anyways.”
When Texas legalized hemp in 2019, the lower-potency THC naturally found in small amounts in the cannabis plant — delta-8 — suddenly no longer fit the state’s definition of illegal marijuana and THC. The market capitalized on the notion of a legal strain of THC, and companies began boosting the concentration of delta-8 to make hemp-derived vape pens and edibles that produce a high similar to pot.
The legality of these lab-produced delta-8 products is still under scrutiny, but for more than a year, stores and users have freely sold and purchased them without issue. If teens get caught with vape pens that are proven to contain only delta-8, the worst criminal penalty they would most likely face would be a ticket, similar to getting caught with cigarettes or alcohol.
But delta-9 THC, the most prolific psychoactive compound in marijuana cannabis plants, remained illegal in Texas in concentrations higher than 0.3%. Vape pens with marijuana-derived extracts are legal in many states, like New Mexico and Colorado, but not in Texas, and the criminal punishments for such derivatives are harsher than for marijuana.
Possession of even one illegal THC vape pen can carry a punishment of up to 10 years in prison and a lifelong label that makes it more difficult to get into college, get a job or find housing. Having up to 4 ounces of flower marijuana is a misdemeanor.
In Comal County, deputies have arrested students on felony charges, not knowing what their vape pens actually contained.