Inside the car, the officer found five 1-liter lab jars of delta-8 distillate (enough to make 5,000–6,000 delta-8 vape cartridges) and about 10,000 delta-8 gummies. Wegner was licensed to sell hemp in Texas through his company Delta Remedies, so he didn’t think all the delta-8, an arguably legal version of the chemical in marijuana that gets users high, was a problem.
He was wrong.
Wegner ended up going to jail that day. He was charged with misdemeanor possession of marijuana and DUI because he admitted to taking some delta-8 edibles. He claims he didn’t have any marijuana in his possession, only the delta-8. The charges were mild considering how much product Wegner had in his possession at the time.
The pandemic had the court system backed up, so he didn’t have his first court appearance until a year after the arrest. “That whole year I’m freaking out because they confiscated everything I had in that vehicle,” he said.
When he finally got his day in court about a year later he was given one year of probation for the DUI and six months pretrial diversion on the marijuana charge. Pretrial diversion is an alternative to prosecution that diverts people away from traditional criminal punishment and into certain programs.
He was happy with what he thought was the outcome. But four months into his probation, he was on his way to Abilene from Midland and got pulled over for speeding. By this time, he had switched industries and was working in solar power. The police told him he had a first degree felony warrant out for his arrest for manufacturing and delivery of a controlled substance over 400 grams.
“That whole year I’m freaking out because they confiscated everything I had in that vehicle.” – Case Wegner
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“Next to murder in Texas, that’s just about as bad as it could get,” he said. Unknown to him, the state had charged him with the felony in May 2022, according to Navarro County court records. He bonded out the next morning in Abilene. “I’m like, ‘What the heck is going on?” Wegner recalled.
“I’m thinking this entire time, ‘There’s some kind of mistake here,’” Wegner said. “They’re [the police] not seeing it as a mistake. They’re coming at me with as much as they possibly can.”
He completed his year of probation, but every month he must drive from Abilene to Corsicanna to deal with the felony charge because the case keeps getting reset. The first offer he got from the state was five years’ deferred probation. His attorney at the time told him not to take the deal. Now, the state is coming at him with a minimum 10-year sentence.
Wittingly or not, people in the hemp industry have been risking getting slapped with felony charges for years now, and it looks like it’s starting to catch up with them. Hemp businesses in Texas and across the country have been getting into trouble with the law in recent months and the trend shows no sign of slowing down.
In mid-January last year, police busted into Michael Sims’ South Carolina hemp shop, Crowntown Cannabis. Sims operates three shops in North Carolina and one in South Carolina, selling a variety of products, including delta-9 and delta-8 THC. Delta-9 THC is the common psychoactive compound in weed that gets users high. The 2018 Farm Bill legalized hemp across the country, defining it broadly.
Maybe too broadly, it turns out for Wegner and others like him.
Specifically, the 2018 Farm Bill defines hemp as “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol [THC] concentration of not more than 0.3 percent on a dry weight basis.”
What that translates to, basically, is any product with 0.3% delta-9 or less is considered legal hemp, and anything with more than 0.3% delta-9 is considered illegal marijuana. Several states, including South Carolina and Texas (where marijuana is still illegal), adopted their own hemp laws, which defined hemp almost identically to the 2018 Farm Bill. It was language like this that made people think it was OK to dabble in other derivatives, extracts, cannabinoids and isomers of the cannabis plant.
So that’s what people like Sims and Wegner did. They dabbled, first with delta-8. The states didn’t seem to like that. In 2021, the South Carolina attorney general’s office issued an opinion deeming delta-8 illegal in the state. The opinion said that federal and state hemp laws were only meant to legalize delta-9 at low levels, not to legalize other forms of THC, even though these laws specifically legalized “all derivatives, extracts, cannabinoids, isomers” and more. (Delta 8 is present in cannabis plants in small amounts, but it can be — and is — synthesized chemically from other compounds in the plant.)
The South Carolina attorney general said the law “does not create an express exception for delta-8 and or any other THC isomer.”
Acting on that legal opinion, the Columbia, South Carolina, police and South Carolina Law Enforcement Division barged into Sims’ shop and confiscated what they “perceived to be marijuana.” Sims and his team say there was no marijuana on the premises, just lawful hemp products. As of this month, the website for Sims’ business is still operational, but stories like these exemplify the confusion over state and federal hemp laws. And these stories are cropping up across the country as lawmakers prepare a new version of the Farm Bill, which could include changes in the hemp portion.
In Kansas, where marijuana is also illegal, police raided several hemp shops in April 2022 in search of delta-9, delta-8 and delta-10. Delta-10 is another form of THC that is said to produce a more energetic high. It’s sometimes referred to as a super sativa. The owner of two CBD American Shaman locations in the state told NBC affiliate KSNT that police seized around $20,000 worth of product. CBD American Shaman also has locations in North Texas. The cops in Kansas also raided a shop called CBD Sacred Leaf, taking about 80% of its product, worth an estimated $10,000–$15,000.
These raids came just months after a December 2021 opinion from the Kansas Attorney General’s Office that said delta-8 is a Schedule 1 controlled substance and is unlawful to possess or sell in the state. That opinion set two exceptions, however. It said delta-8 was legal when made from industrial hemp as long as it didn’t exceed 0.3% total THC. That means the delta-8, delta-9, delta-10, delta-whatever combined can’t exceed 0.3% in any given product, even though Kansas hemp laws specifically limit only delta-9. The Kansas police didn’t issue any citations or make any arrests as part of the raids. But not everyone is so lucky.
Michael DeAngelo in Pennsylvania was arrested after his shop was raided in August last year. According to NBC affiliate WTAJ, several laws in Pennsylvania legalized all derivatives, cannabinoids and isomers of hemp, except for delta-9, which can’t exceed 0.3%. State police wouldn’t comment on the raid, only pointing to three state laws that mention THC being illegal. However, none of those laws mentions the substance coming from legal hemp, according to the news station. The police took nearly all of DeAngelo’s product, leaving behind only delta-8 flower and CBD, a compound in cannabis that users say has medical benefits but doesn’t produce a high. Even though police recommended he shut it down, DeAngelo’s Our CBD Hollidaysburg shop is still open. However, he’s worried he will have to shut down if the confiscated product is not returned.
In Ohio, where weed was only recently legalized, a law enforcement task force raided four hemp shops in April 2022. The police claimed the shops were selling products that illegally contained THC and hashish. Three of the shops were part of a chain called VIP Smoke Shop. The police seized vape cartridges they suspected contained illegal THC, as well as invoices, bank records, duplicate checks and ledgers, according to the Dayton Daily News.
Jeff Cornwell, the attorney for VIP Smoke Shop, told the publication that the products the police took “are the same products that are sold on the shelves of every other gas station store that sells hemp-derived products.” He said his clients haven’t broken any laws. So far, no one has been arrested or charged as part of the Ohio raids. These stories mirror raids on North Texas hemp shops over the last year, raids that seem to be getting more aggressive.
On the morning of Oct. 20, Kyle Brown got a call from one of his employees saying the cops were at his Killeen vape shop, Venom Vapors. The fire marshal, city building inspector and code enforcement personnel were there too. They had gotten a tip about narcotics sales and crime at the business.
They managed to find some minor violations. For example, extension cords were plugged in where they shouldn’t have been. But the cops were more interested in some of the products the business was selling, namely delta-8, delta-9 and THCa, another compound found in cannabis. THCa is the precursor to delta-9. It’s not psychoactive on its own. But when it’s heated— smoked, for intance — the THCa turns into delta-9, which can get users high.
The legality of THCa is up for debate, but hemp businesses are still selling the stuff just about everywhere you look.
Brown and his sister, Michelle Sayers, opened Venom Vapors in 2017 and moved to their current location in 2020.
Many of the products at Venom Vapors come with a certificate of analysis (COA), which lists their contents and shows they are compliant with state law.
A detective told Brown he scanned the COA for one of the shop’s delta-8 dab products and that it showed there was too much THC for it to be legal. “That just isn’t the case,” Brown told the Observer in late October. The police claimed the COA showed the product had around 80% THC. Brown tried to explain that the COA showed it was within the legal limit of delta-9 THC and that the 80% was actually the delta-8 content. “That’s when things kind of went sideways,” the shop owner said. “They didn’t take the certificate of analysis for what it was. They instead turned it around and used it against us, which was very alarming.”
Brown said the police used the COA to obtain a search warrant from a judge. He thinks that had the COA been presented accurately, the police wouldn’t have been able to obtain the warrant. The Killeen police confiscated all of the delta-8 dabs, some delta-8 and delta-10 flower and some THCa prerolls. They also took over $36,000 from the business as evidence, as well as eight electronic gambling machines they said were being used for illegal gambling. Brown claims the machines are compliant with state law.
No one has been charged as part of the raid, but Brown is worried where the case will go. He was told that the seized products would be sent off to a lab to be tested, but he’s worried about the method of testing.
Law enforcement mostly uses a method of testing called gas chromatography, which uses heat. This heat may skew the results of the tests. If a THCa product is tested, for example, all of that THCa could be converted into delta-9. If that happens, the product will likely test over the legal limit of delta-9 THC.
Stories like Brown’s are cropping up in North Texas as well.
One of the first North Texas raids took place in Garland and involved the Drug Enforcement Administration. The Garland Police Department and a DEA task force searched bee Hippy Hemp Dispensary on June 7, 2023, arresting the store’s owner and a longtime employee – Christopher Charles Fagan and David Lee Dranguet – for allegedly selling products with too much THC. The raid took place after undercover police bought THCa products at the shop. All of the shop’s product was seized, as well as a tiny home that sat just outside the store, cash, numerous personal items and even the bee Hippy mascot outfit.
The store’s owner claims all of the seized product was lawful hemp. The shop was shut down temporarily but has since reopened. Fagan and Dranguet had to post $45,000 in bonds to be released from jail.
In August, police raided the Little Elm hemp shop Happy Hippies. On Aug. 29, owner Jonathon Pollak got a call from the Little Elm Police Department, who told him he needed to go to his shop but wouldn’t say why.
When he arived, his shop was swarming with police. Pollak said the DEA was there, too, but the agency wouldn’t confirm or deny its involvement, instead directing the Observer to the Little Elm Police Department, the Internal Revenue Service and the U.S. Postal Inspection Service.
Pollak found police going through his product. The search warrant said the police were there to look for THC. Pollak maintains that all of his products come from hemp and are compliant with state law. Happy Hippies was selling delta-8, delta-10 and THCa, as well as other merchandise, such as clothing. According to Pollak, the police seized about $45,000 worth of his product.
“People are risking their lives doing this at this point.” - Chelsie Spencer, cannabis attorney
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The police also searched Pollak’s home after he gave them consent to do so. At his house, Pollak said the police tried to use a scare tactic by telling him, “We’ve got you right now on about three state jail felonies. You’re looking at about five years.” Then, according to Pollak, the cops asked him, “How are you going to help us?” Pollak said the police told him that they’d contact him in a couple of weeks with some money to start making purchases from wholesalers. To Pollak, it sounded like the police wanted him to be an informant. He declined to help, and now worries he’ll be arrested.
He said the raid has essentially ruined his life. He had to temporarily shut down his shop, which meant he didn’t have any income. As a result, he had to return his car to the dealership, sell all of his guns and most of his reptiles (he had aspirations of opening a pet shop), and list his boats for sale. He’s also since lost a custody battle for his kids because he wasn’t able to pay his attorneys anymore.
“Literally lost my damn life,” he said.
He has since reopened his shop, but he’s cut back significantly on selling THC products like delta-8. “People want delta and I’m honestly just scared to sell it or invest in it like I had done,” Pollak said after reopening. He’s considering closing down the store for good or setting up shop in another city.
Local cannabis attorney Chelsie Spencer said she’s seen an uptick in the number of raids on hemp shops recently. “I can think of seven alone here in the North Texas area in probably the last four months, and they’re getting more aggressive: seizing inventory, seizing assets, moving for civil forfeiture,” Spencer said.
She said she thinks the rise in retail store raids has something to do with the number of child safety incidents regarding THC.
Between December 2020 and Feb. 28, 2022, the FDA received 104 reports of adverse events in patients who consumed delta-8. About 8% of those involved patients younger than 18 years old. On top of that, between Jan. 1, 2021, and Feb. 28, 2022, national poison control centers received 2,362 delta-8 exposure cases. About 41% of those involved people younger than 18.
“We do have a lot of bad actors out there who will sell high-potency edibles to a 12-year-old or to a 14-year-old,” she said. “That’s insane. How do you not expect police to start coming in and going after these stores when you have bad actors selling these to people under the age of 21?
“The second compelling reason behind this is I do believe the state of Texas is looking for a test case to show that some of these substances, particularly THCa, are scheduled substances here in Texas,” Spencer said.
These raids often happen the same way, she explained. An officer will sit outside the store waiting to pull over customers. The cops either arrest the customers or detain them and seize the product. From there, the product will test hot. After this happens two or three times, an undercover officer will enter the store to talk to employees and make one or two test buys. Once the products test over the limit, police go to a judge for a warrant to perform a raid.
“People are risking their lives doing this at this point,” Spencer said. “This is state jail felony type level. … People need to be extremely, extremely careful right now. The state of Texas is not playing around.”
She added: “This is life-disrupting events for these store owners. Imagine you’re running your business one day and the next day everything is gone. They’ve taken all of your inventory that you have paid for, they’ve taken your cash, they’ve frozen your bank account and they’ve put you in jail. That’s a pretty big life-changing event for someone.”
She said it seems like the police are primarily going after THCa. “I have not read a single affidavit that did not involve THCa,” Spencer said. She said some loud voices have been adamant that THCa is legal, but not everyone agrees with that. She said some of those loud voices belong to attorneys who are not licensed in the state of Texas.
Texas attorney David Sergi is representing Wegner. He’s also representing the manufacturer Hometown Hero CBD in its lawsuit against the state to keep THC isomers off Texas’ list of controlled substances. He maintains that all of this stuff is legal, including THCa. As long as a product doesn’t have more than 0.3% delta-9 THC, it’s legal under state and federal hemp laws, Sergi contends.
There are arguments for the legality of THCa, but those arguments won’t necessarily keep you from getting arrested, and anyone planning to make them had better have a fair amount of money in the bank. To Spencer, there are cannabinoids that are highly risky to sell, some that are low risk and others that don’t come with any risk at all. If you’re looking to get into the hemp business and sell a high-risk cannabinoid like THCa, the first question Spencer is going to ask is “Do you have $10,000–$25,000 to set aside to retain a felony criminal defense attorney in the event that you need one?”
And that $10,000–$25,000 is just the cost of retaining an attorney. To see a case to trial with a competent attorney, Spencer said you could be looking at spending from $50,000 to $100,000. If the case goes to a higher court, the costs could grow from there. She said you can make all the legal arguments in court that you want, but in Texas it will likely be a losing battle.
“People have this rosy outlook sometimes of the law, that the law is the law and it will always be adjudicated as such, and they tend to think that politics is separate from law. Not so. … The one thing you can never control in litigation is your court of final appeal.”
Spencer suspects if any of these THCa cases go to the Texas Supreme Court, it will rule against the hemp businesses.
Whichever way you slice it, the creation of all these novel cannabinoids was not the intent behind federal and state hemp laws.
Jonathan Miller, general counsel for the U.S. Hemp Roundtable, said he helped draft the language in the 2018 Farm Bill.
The main intent behind the bill was “to legalize a crop that was part of the nation’s culture for a couple hundred years and had been made illegal by the whole reefer madness scare in the early 20th century and trying to provide economic opportunity to American farmers to grow this crop,” he said.
Industrial hemp is used for its fibers to make textiles, and its seeds produce oil that can be used to manufacture lubricants, paints, inks, fuel and plastics.
It’s safe to say that the law’s authors didn’t intend to legalize chemical isomers such as delta-8. “We had no idea what delta-8 was,” Miller said. But the law says what it says, Miller explained. “[The Farm Bill] doesn’t mention delta-8 THC,” he said. “The fact of the matter is courts have looked at this across the country and have said that delta-8 is legal under the letter of the law and that’s what matters.
“Literally lost my damn life.” – Jonathon Pollak, Happy Hippies hemp shop
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“We just, at the time, had no knowledge about these particular products, and they’ve become a real lifeline for a lot of American farmers. The real challenge is that we were counting on the FDA to start regulating all hemp products, including CBD, and they haven’t done so. As a result, these unregulated markets have been created. That’s the real challenge, the real thing that I would go back to try to fix.”
He said the broader hemp industry wasn’t sure what to think about delta-8 at first. “The initial feeling from most in the hemp industry when this whole [delta-8] thing happened was one, surprise, and we need to do something about it. This is nothing that we intended,” Miller said. “But what we learned shortly thereafter is because of the FDA’s failure to regulate hemp products, we had seen a tremendous crash in CBD prices and so many bankrupt businesses that the adult cannabinoid space really became a lifeline for these hemp farmers that had invested so much time and treasure into this.”
Since then, Miller said much of the industry has come around with respect to novel cannabinoids like delta-8.
He said if he could do it over again, he’d want the 2018 Farm Bill to require the FDA to regulate hemp products as dietary supplements. “That was the intent, and I wish we had had more clear language on that.”
Miller said there are continuing discussions at the federal level to make all of this stuff illegal, but he doesn’t think that’s going to happen. He thinks the legality of these products will be decided on the state level.
He’s hoping the next farm bill, which is currently being drafted, will come with more regulations on these products. “The idea here is we don’t need to make anything illegal,” Miller said. “We don’t need to go back and have prohibition, but let’s get them regulated. Let’s make sure that adult cannabinoids are kept out of the hands of kids, and that’s where we need federal regulation.”
But there are efforts coming down the pipeline that could put all the fun to an end. Spencer said she’s working with various senators’ offices and one Senate committee on the drafting process for the next farm bill. She couldn’t say exactly who she’s working with, but she’s primarily consulting them on the impact certain language might have on the hemp industry. In the new farm bill, the purported loophole that has allowed products like delta-8 will close, Spencer said. “All of these high-potency, 250 milligram edibles, they’re going away,” she said. “The industry’s not going to be happy with that, but that’s what’s going to happen.”
She said what’s being discussed now is the idea of a total THC cap, instead of just capping delta-9 THC at 0.3%.
Beyond that, she said something that people aren’t considering is that cannabis will likely be rescheduled to a Schedule 3 controlled substance by the end of the year. “Any pharmaceutical company then can begin filing for formulations that contain cannabis as an active ingredient in the prescription drug,” she said. “Do you think there is any way that the United States government is going to allow the novel hemp cannabinoid industry to continue and compete with pharmaceutical use? Let’s be honest.
“I would not bank my life savings on running out and opening a novel cannabinoid enterprise any time soon.”
Wegner has spent tens of thousands of dollars on legal representation to defend himself against the felony charge of manufacturing and delivery of a controlled substance over 400 grams. He said he’s staying out of the hemp business until there’s some clarity around state and federal hemp laws. “It was too gray,” he said. “There’s a very fine line between felony and freedom.”
