Recently Sam Adamo Jr was asked to give his take on the status of hemp and cbd in Texas.
Also the USDA has approved Texas Hemp plan, now the TDA will adopt these rules and then shortly thereafter licensing will begin. Be ready!
Is Marijuana Legal? No, but . . .
In an attempt to jump in on the hemp gold rush (i.e. make lots of money) and legalize the cultivation, manufacturing, transportation and sale of hemp products, Texas legislatures have indirectly handcuffed police agencies and prosecutors in their ability to prosecute marijuana charges.
You may have never seen a drug lab report, but as a Cannabis and Criminal Defense Attorney, we have seen many. If there is THC in the tested substance, it is marked positive. In other words the THC is qualified, but not quantified (think pregnancy test, you either are or are not). Currently, Texas law enforcement agencies and their accompanying labs do not possess the necessary instruments to test the amount of THC in any given marijuana product. Without a quantified amount of THC, police and prosecutors do not know if the seized product is in fact illegal marijuana and punishable under the Texas Controlled Substance Act or legal hemp, which has since been removed from the Texas Controlled Substance Act.
District Attorney offices and law enforcement are scrambling (much like Tennessee and Virginia earlier in the year). The hope is to have the necessary marijuana testing equipment in the next year. The reality is it could take substantially longer. It’s also going to cost a lot of money, like a few million.
Other labs (outside of Texas) that can quantify THC, can only do so on a limited basis and this does not include lotions, oils, and edibles. Also for any lab report to be admissible under Texas law, the testing lab has to be accredited by the State of Texas. Currently, we are unaware of any labs capable of testing THC amounts in marijuana that are also accredited.
How Texas counties are handling marijuana criminal charges
To date, Harris County, Ft. Bend County, Waller County, Nueces County, Travis County and Tarrant County have issued public statements they will not be arresting and prosecuting low amount marijuana cases. Felony marijuana amounts, will be looked on a case-by-case basis. Montgomery County, Brazoria County Galveston County, Brazos County, Grimes County and Bexar County have taken the opposite approach, issuing statements they will continue to prosecute all marijuana arrests.
An Accused’s Right to a Speedy Trial.
The problem counties like Montgomery will run up against, is not only the aforementioned marijuana testing and lab issues, but the Constitutional requirement afforded to all accused, the right to a speedy trial. A prosecutor can not ask for a one or two year reset on a case and not violate this Constitutional right . . .if defense attorneys are on their game.
Texas Evidence Requirements for Forensic Testing
Some of these counties have said they will seize the marijuana, hold it, eventually test it and file charges at a later date. This again is likely to have evidentiary problems. Forensic analysis have to meet the requirements set forth by the Texas Court of Criminal Appeals in State v. Kelly. Our belief and with the unexpected twists, turns and newness of it all, proper marijuana testing procedures and protocols are unlikely to be followed, either because it is impossible or because law enforcement agencies won’t know better.
So while marijuana is not legal in Texas, those responsible for arresting and prosecuting have an uphill battle to say the least.
If you need a Houston Drug Criminal Defense Lawyer, contact the Adamo & Adamo Law Firm
Hemp and CBD, where is it headed in Texas now?
On June 10, 2019, Governor Greg Abbott signed House Bill 1325 into law, to allow for the production, manufacture, retail sale, and inspection of industrial hemp crops and products in Texas. This includes products for human consumption that may contain cannabidiol, also known as CBD, as well as certain other parts of the hemp plant.
Under HB 1325 the Texas Department of Agriculture (TDA) must first file a state plan to monitor and regulate the production of hemp in Texas, and have that plan approved by the United States Department of Agriculture (USDA) before an agency can create the rules necessary to implement the rest of HB 1325.
According to the USDA website, “it is USDA’s goal to issue regulations in the fall of 2019 to accommodate the 2020 planting season. As required by law, USDA is committed to completing its review of [state] plans within 60 days, once regulations are effective.”
What is DSHS required to do under HB 1325?
When the submitted TDA state plan is approved by USDA, HB 1325 requires DSHS to:
- Establish a manufacturing licensure program for consumable hemp products.
- Create a registration process for retailers selling consumable hemp products containing CBD.
- Work with DPS on random testing for consumable hemp products containing CBD sold at retail. Random testing will not occur until the retail registration process is established after the TDA state plan approval.
While DSHS rules development will begin before the TDA plan is approved, final rules cannot be completed until after the TDA state plan approval. Therefore, DSHS may only begin issuing licenses and accepting registrations after TDA’s plan is approved by USDA and DSHS adopts rules consistent with the TDA approved plan.
What is DSHS’ relationship with Hemp and CBD?
DSHS has oversight of food, drug, cosmetics and dietary supplement manufacturers, distributors and retailers, including those that may use or market hemp or cannabidiol (CBD) as an ingredient in those products. Local jurisdictions may also regulate retail sales of food, drugs, cosmetics and dietary supplements, but may not prohibit the sale of consumable hemp products.
DSHS does not regulate an individual’s private possession or private use of any food, drug, cosmetic product or dietary supplement. Neither does DSHS administer the Texas Compassionate Use Act.
Can I manufacture consumable hemp products?
The manufacturing license for consumable hemp will not be available until the USDA approves Texas’ hemp plan. That plan is under development by TDA. State licensing rules and requirements relating to the manufacture of consumable hemp products may only be proposed after the approval of the plan by the USDA.
Until the plan is approved and rules are in place, current law applies. Only ingredients on the FDA’s Generally Regarded As Safe (GRAS) list or otherwise federally approved may be used in foods, drugs, cosmetics and dietary supplements. There are currently three hemp-derived products on the GRAS list; hulled hemp seeds, hemp seed protein and hemp seed oil. Manufacturers of these products are governed by Health and Safety Code Chapter 431. Manufacturers interested in producing consumable hemp products not containing CBD may currently apply for a DSHS food manufacturer license.
Can I sell consumable hemp products at retail now?
Yes, Section 11 of HB 1325 allows for existing retailers to possess, transport or sell consumable hemp products that become part of the retailers’ inventory prior to the effective date of DSHS rules resulting from HB 1325. The retailer must be licensed through DSHS as currently required by law. Retailers selling consumable hemp products must ensure the product is safe for consumption by being free of heavy metals, pesticides, harmful microorganisms or residual solvents. Additionally, consumable hemp products sold must not contain more than 0.3 percent THC.
During routine inspection or complaint investigations, DSHS, within its statutory authority, may detain products, including dietary supplements, that are labeled as or contain hemp, including CBD, and that make unproven health claims, such as preventing, diagnosing, treating and/or curing a health or medical condition. Products that are being manufactured or handled in a manner that creates a health hazard for people who may use it may also be detained.
Note: HB 1325 contains limitations regarding retail sales of out-of-state consumable hemp products. The products must be processed or manufactured in another state in compliance with:
- that state or jurisdiction’s plan approved by the USDA;
- in the absence of a state submitted plan, a plan established by the USDA; or,
- the laws of that state or jurisdiction if the products are tested in compliance with, or similar to those set out in Section 443.151 of HB 1325.
Upon approval of the Texas state hemp plan by USDA, DSHS will establish a process to register retailers selling consumable hemp products containing CBD. At that time, existing retailers selling consumable hemp products containing CBD and new retailers wishing to sell these products will be required to register with DSHS.
But, questions still remain
Is hemp legal now? the Drug Enforcement Agency’s (DEA) and the Food and Drug Administration’s (FDA) responses will tell.
*Update: December 21, 2108: the FDA is on the record saying until the new regulations (Farm Bill Act) officially take effect, the FDA will continue strict enforcement of all cannabis products. The good news for those in the hemp industry is the FDA is open to start looking more closely at CBD, including steps toward the lawful marketing and selling of the products.