This story is published as part of the series Highly Legal in partnership with AL.com, The Milwaukee Journal Sentinel and The Examination, a nonprofit newsroom that investigates global health threats. Share your experience or questions with us here.

Sarah arrived at a Tuscaloosa hospital in July 2023 armed with a printout of a birth plan laying out her wishes for labor and delivery.

She was preparing to have her second daughter, and Sarah knew she wanted some freedom to move around, and for her newborn to stay in the room with her after birth. Then her delivery veered off script.

Without her knowledge, Sarah had been tested for drugs. The test came back positive for THC.

“I said ‘OK,’ I did hit a delta-8 pen, but that was it,” Sarah said. “They said, ‘We do have to test the baby, it’s hospital policy. Because you tested positive, we have to test the baby as well.’ They tested the baby, and she came back positive as well.”

Sarah and her husband, Derek – which are not their real names – said they had both used delta-8, which is a hemp product now sold at gas stations and vape shops all over Alabama and many other states. It’s not exactly marijuana, but thanks to some clever processing, it’s pretty close.

“We’ve only ever done delta-8,” Derek said. “A legal product on the market. You can go buy it at any store. I can go take you to it right now at the gas station. That’s all it is. What’s the difference between that and any other legal product?”

No one would get high from smoking the hemp plant okayed by the federal Farm Bill in 2018. But hemp does contain small amounts of the same mind-altering compounds in marijuana.

What Sarah and Derek didn’t know was that a whole industry has emerged in the last few years to extract those psychoactive ingredients and concentrate them in high amounts in sodas, candies and vapes. Those concentrated hemp products can get you high. And they can lead to a failed drug test.

In Alabama, the consequences can be devastating. The state arrests more women than any other for drug use during pregnancy, according to Pregnancy Justice, and a failed test can lead not only to investigation by child welfare, but also to criminal charges. Other states, including Oklahoma, South Carolina and Mississippi, have similar policies.

Marijuana remains illegal in Alabama and about two dozen other states. But even in states where criminal prosecutions are rare, people who use delta-8 can face job loss or the revocation of parole or probation over tests that come back positive for marijuana.

In Wisconsin, a woman going by the name Madeline filed a complaint after she was fired for failing an on-the-job drug test. She tested positive for marijuana even though she only used federally legal hemp products, her attorney Aaron Halstead said.

She was injured on the job after equipment fell on her head. She used gummies made with cannabinol, another type of cannabinoid, to treat the pain. After she went to the emergency room, her employer asked her to take a drug test, which came up positive for marijuana, her attorney said.

“So our claim is that she was terminated for the use of a lawful substance, which is illegal under Wisconsin statute,” Halstead said. “The conduct of the employer is illegal.”

Scott – which is not his real name – moved from California to North Carolina to take a job. He said he lost access to legal medical marijuana and turned to delta-8 products to help with symptoms of post-traumatic stress disorder. But they caused him to fail a pre-employment drug screen at a biopharma company.

“The only thing I was consuming was federally legal hemp, and the [HR] person immediately was like, ‘so marijuana?’ And I said ‘no, federally legal hemp, delta-8 and CBD products’,” said Scott. He said he had been using these products without knowing that they would cost him a job. “I had to resort to taking out loans, I maxed out my credit card, I almost ended up homeless.”

For Sarah and Derek, the investigation turned into a two-month nightmare. After Derek also failed a drug test, social workers asked the couple to agree to a plan that would temporarily send the two kids to live with his parents, more than two hours away, near Huntsville. They couldn’t keep their children at home or even take care of them without supervision.

Child welfare agencies refer to these arrangements as “safety plans.” Parents much voluntarily agree to the plan, and often do to avoid court orders that would send kids to foster care instead.

As delta-8 and a growing array of hemp-derived products, like delta-9/THCA and HHC, have become more popular, drug testing hasn’t kept up.

Some drug tests can’t distinguish between illegal marijuana and legal delta-8, said Lukasz Ciesla, a biology professor at the University of Alabama.

Delta-9 THC is the main mind-altering ingredient in marijuana. Although the delta-9 molecule binds more strongly to brain receptors, causing a stronger “high,” delta-8 can produce some of the same feelings.

Many people say they use delta-8 for sleep and pain relief. Sarah broke her leg in a golf cart accident and found out about her first pregnancy when she went to the hospital. Doctors prescribed opioids for pain relief, she said, then the anti-nausea drug Zofran for morning sickness.

She said delta-8 treated both symptoms with fewer concerns about side effects. Derek began using delta-8 for chronic pain from an injury he sustained during his time in the U.S. Army.

“Delta-8 and delta-9 are chemically quite similar,” Ciesla said. “The only difference is the position of the double bond in the molecule.”

Ciesla said there are a couple reasons delta-8 might show up as marijuana on a drug test. Many front-line urine tests, which are cheap and fast, screen for antibodies and can’t distinguish between delta-8, delta-9 and the wide array of new molecules produced by the hemp industry.

More specific tests using liquid chromatography-tandem mass spectrometry can pick up the difference. However, the tests are more expensive and require access to a laboratory.

Adding to the confusion, a variety of new hemp products are fighting delta-8 for space on gas station shelves. Delta-9 sodas and candies and vapes have been popping up all over states like Alabama and Wisconsin and Texas.

These are states where marijuana plants are still illegal, but marijuana’s main psychoactive ingredient, delta-9, is suddenly being derived from legal hemp and put on sale at gas stations.

And testing can’t tell the difference, said Paul Cary, former director of the Toxicology and Drug Monitoring Laboratory at the University of Missouri. There is no test to tell the difference “between someone who is using CBD-derived delta-9 THC from someone who is just smoking regular cannabis.”

Some newer versions even smell like marijuana. Manufacturers can extract psychoactive compounds from hemp, create a concentrate, and then spray that concentrate on smokable hemp flowers. So gas stations and smoke shops are now selling hemp products that look like marijuana, smell like marijuana, can provide the same high as marijuana, and can cause someone to fail a drug test just like marijuana.

In Florida, that confusion led to a legal challenge over a traffic stop initiated because the officer smelled marijuana. The man was arrested for drug possession, but he appealed, arguing that the officer lacked probable cause because the substance could have been legal hemp, “which is indistinguishable from marijuana by sight or smell.”

The court rejected his argument, ruling that police still had good reasons for the traffic stop. Still, an increasing number of attorneys and defendants are using similar arguments to challenge arrests.

And even if people stick with delta-8, they still might fail a more sensitive test, Ciesla said. Alabama and most other states don’t regulate hemp products, and there is a wide range of manufacturing quality. Some producers work in professional facilities, but others operate out of homes, using simple techniques combining CBD, solvents and acid.

That can produce a mixture of molecules, including delta-8, delta-9 and delta-10. If the maker doesn’t purify the delta-8, the product could be contaminated with molecules identical to those in marijuana.

“At the end of the day, you don’t really know what these people put in those products because there’s no control whatsoever,” Ciesla said. “They might have done some simple bathtub acid extraction of CBD and put it in the gummy and sell it as a safe product.”

Some attorneys and other experts have taken to social media to warn people to avoid all hemp-derived products if they are concerned about drug testing.

But that’s not always clear either, as not all delta-8 products are plainly labeled, and some sold as supplements for sleep or anxiety could cause positive drug tests for people who don’t realize they are ingesting a substance related to pot.

Like marijuana, delta-8 can remain in the system for a long time. One-time users can test positive for a week. That stretches to 30 to 60 days for heavy users, according to the Mayo Clinic Laboratories.

In Tuscaloosa, Rick Plummer, a spokesman for DCH Regional Medical Center, said not all new mothers are screened and the tests used by the hospital have a low chance of showing positive for delta-8. He said that drug testing is only automatic for women who arrive in labor with no history of prenatal care.

“Any other drug testing is done at the physician’s discretion,” Plummer wrote in an email. “Physicians order drug testing or screening of the mother and/or infant for a variety of reasons including but not limited to patient history or information from governmental entities.”

But in a rapidly changing marketplace, fueled by a legal hemp industry now worth billions, some agencies responsible for drug testing parents haven’t adjusted to keep up. Each state has different child welfare policies, and in Alabama, the Department of Human Resources has no specific policy about delta-8, said Deputy Chief of Staff Daniel Sparkman.

Instead, Sparkman referred AL.com to the agency’s policy on THC and illegal marijuana.

“Drug screenings are used as a tool for understanding the amount of and frequency of use of drugs as a part of an overall assessment,” Sparkman said in an email. “Being positive for THC is not used as the sole reason for the final disposition of any report of child abuse and neglect.”

At the beginning of their child welfare investigation, Sarah and Derek were reassured that if they tested positive for THC and nothing else, the case would be closed. They did everything they could to comply, Sarah said, often paying out of pocket for drug tests and drug assessments.

Yet social workers continued to escalate their case. They thought the case would end after a home visit. Then the social worker said if they complied with a safety plan for a couple of months, it would be over. Then they finally got the call that their case had been scheduled for a hearing in front of a judge.

“When I got the call that we needed to come to court, I remember like breaking down and being like, ‘Why?’” Sarah said. “What have we done? We had clean drug tests at this point. Why?”

However, the hearing became a turning point. Sarah hired a private attorney and arrived with a sheaf of clean drug tests and reference letters from friends and family. A judge looked at the evidence and ended the safety plan, sending the children back home.

Sarah and Derek are expecting their third child soon and have stopped using delta-8. Both their daughters are thriving, she said. Despite the delta-8 use, her doctor encouraged her to breastfeed, and any exposure did not seem to affect either child. Both have been healthy and developing normally, Sarah said.

Sarah and Derek both said Alabama agencies should adopt better tests that recognize delta-8 and policies that can protect parents who take it.

“Anyone can tell you we are walking billboards for babies and family,” Sarah said. “We love nothing more than our role as parents. It was completely ridiculous that we were being run through the gauntlet for a legal product.”

Sarah remains wary of hospitals and drug tests and has worked with a midwife during her third pregnancy. This time, she says she hopes to deliver at home.