AUSTIN – The state of Texas will soon remove hemp from its list of controlled substances.
On April 5, the Texas Department of Health will no longer classify cannabis as a Schedule I drug, a very limited group of substances that includes LSD, heroin and cocaine. The government lists a substance in this category if it is considered to have a high potential for abuse and is not considered for medical use.
For cannabis-related businesses and advocates, the move is a welcome change that they say underscores the legitimacy of their products.
But legal experts added that removing cannabis from the list of controlled drugs does little to clear up confusion about the legality of cannabis products – including chewing gum, pain creams and oils – that are already on store shelves in Texas.
“It simply came to our notice then [hemp] legally, ”warned Lisa L. Pittman, a cannabis lawyer who divides her time between Austin and Denver. “Legislative change is needed for criminal penalties.
State lawmakers will discuss a number of bills on Monday that, if passed, could clarify how police and other law enforcement agencies should enforce cannabis laws and clarify once and for all which hemp products are now legal – and which will remain illegal – to buy and sell.
So what exactly is legal?
Cannabis laws can be confusing and murky, especially in Texas.
Marijuana and hemp are two different varieties of the cannabis plant. Unlike marijuana, hemp has low levels of THC, the psychoactive compound that gives marijuana users high. But state law still defines hemp and marijuana as the same substance and prohibits the possession and sale of both in most cases.
In fact, only a small number of Texans can legally buy cannabis products with each THC. The state program of compassionate use, established in 2015, allows patients with incurable epilepsy and two prescriptions to buy cannabis-based drugs with up to 0.5 percent THC. Three companies have state licenses to grow marijuana, manufacture and sell low-THC drugs.
For everyone else, marijuana and hemp products with THC have been illegal for years. Hemp cultivation here also remains prohibited. The only legal hemp products are those grown elsewhere that do not contain THC, such as sterilized seeds added to smoothies, plant stem fiber for industrial or construction projects, or cooking or topical oil.
Cannabidiol or CBD is a compound of cannabis that can be extracted from marijuana or hemp. Only hemp-free CBD products based on hemp are legal here.
Edible CBD products and others advertised as medical benefits face additional restrictions. For example, local CBD oil without THC, derived from hemp, which is used for muscle cramps? This is probably good under state law. But hemp oil with traces of the psychoactive compound or claims it will cure you of anxiety, stomach problems or other diseases? They are restricted by the Food and Drug Administration, along with any edible CBD product.
So does removing cannabis from Texas’ list of planned drugs change any of that? Most legal experts say no.
“It really won’t have a direct impact unless it confuses people even more,” said Shannon Edmunds, a full-time attorney at the Texas Bar Association.
Last year, the US Congress legalized hemp, which contains less than 0.3 percent THC. It has also made it easier for businesses and customers to transport hemp across national borders and for farmers to grow it as a crop.
But the approval of federal lawmakers doesn’t necessarily mean anything in Texas. The U.S. Department of Health’s decision to declassify cannabis as a controlled substance only partially brought Texas into line with federal law. State lawmakers will need to change the definition of hemp and existing criminal sanctions for buying and selling to bring it into full compliance, Edmunds said.
The bills, which will be debated Monday in the Texas Chamber of Agriculture and Livestock Committee, could decriminalize hemp ownership by less than 0.3 percent THC or create a program that will allow Texas farmers to grow the plant as a crop, or both. The Republican Party of Texas supports the law. Marijuana will remain illegal even if these bills become law.
But not everyone agrees that hemp products will remain banned next month.
Chelsea Spencer, a Dallas-based cannabis lawyer, has interpreted the removal of cannabis differently from the list of controlled substances and believes retailers and consumers have argued that federally defined cannabis products will be legal on April 5. However, she notes that this argument has not been tested in Texas courts.
“[Consumers] they need to make sure the store is supplied by a certified farm or facility, “Spencer said.” When they stay in this CBD store, they need to ask for this certificate of analysis, “which includes independently verified laboratory results that describe what’s in the product. .
However, she encourages lawmakers to clarify any ambiguities in the law, as the cop may still be arrested.
“Our legislature really needs to address this,” Spencer said.
Pittman agreed: “If there is even confusion between lawyers and lawmakers, the poor police have no idea.”
If it’s illegal, why can I buy these things now?
Law enforcement agencies in different cities also apply the law differently.
Dallas County cops have not given priority to attacks on local shops or arrests of people buying potentially illegal hemp products because it is not a major public safety concern. This is true in many other cities in Texas, where police have also stopped arresting people for possession of small amounts of marijuana.
But in Taranto County, the district attorney issued a statement saying CBD oil was illegal. A few weeks later, local police raided stores in Fort Worth.
Pittman described it as “another discrepancy” between what the law says and what happens in real life: “The law in the books versus the law in action.”
But even if stores are attacked or consumers arrested, charges are often dropped and products are returned because everyone must be individually tested to prove they are illegal under state law, Edmunds said. Many local district prosecutors believe it is not worth the time and money.
Faced with little or no application, Texas companies continue to retail products from gas stations and smoothie stores to specialty stores.
Daphne Reva and her husband, David Palatnik, who live in St. Louis, own CBD Kratom, a chain of specialty stores that sell hemp products, including CBD oils, pain creams and dog treats. They have opened three stores in the Dallas area and have 17 others in the Chicago and St. Louis areas.
Reva said the company had no problems with law enforcement in Texas since expanding to the state in 2017. When its first Dallas store opened, a curious police officer stopped by to ask a few questions, she said, but the stores are already the number of firefighters and police officers as customers.
Reva said declassifying hemp could reassure businesses and customers in Texas.
“It’s really exciting that this is going in the right direction and government officials are finally doing what people want,” she said.
CBD Kratom stores do not sell any products that are sold as containing THC, she said. As such products are not approved by the FDA, she said she monitors quality by reviewing test results and getting to know companies.
However, she said, it would be useful for the state to pass a law to prevent the application of patchwork by government agencies and police departments.
She said countries like Texas should continue as a growing number of large retailers, from Whole Foods to Neiman Marcus, sell hemp-derived beauty and wellness products. The pharmacy chain CVS recently announced that it will sell topical CBD hemp-based products, such as creams and sprays, in eight states.
“There are a lot of great players now, so I don’t think that’s going to get anywhere,” Reva said.