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.