Texas THC Lawyer

Many ask, is CBD Oil legal in Texas? Here's a great article in the latest Statesman.com that breatks it down. Bottomline, it's a gray area.

 

 

Despite legal uncertainty, sales of cannabis extract booming in Texas

By Bob Sechler

Posted Oct 12, 2018 at 4:46 PM Updated at 3:50 PM

Stores selling CBD – a nonpsychoactive component of marijuana and hemp – have been popping up statewide, almost as if Texas recently enacted a sweeping medical cannabis program.

It hasn’t.

The boom in retail sales of products containing CBD, or cannabidiol, has instead been taking place in a legal gray zone, with law enforcement agencies, prosecutors and some pro-cannabis activists disagreeing among themselves as to whether it is lawful in Texas.

The uncertainty stems largely from vaguely worded state marijuana prohibitions, as well as from evolving cannabis policies at the federal level.

But even those who contend it is illegal say enforcement is a low priority for prosecutors and police.

Texas lawmakers approved a restrictive medical cannabis law in 2015, called the Compassionate Use Act, that allows dispensaries licensed by the Department of Public Safety to make and sell CBD products that have greater percentages of active ingredients than the bulk of those now found at retail outlets. But the DPS has only allowed three dispensaries to obtain licenses -- with each required to pay an initial $488,520 administrative fee -- and the law only permits them to sell to patients suffering from a rare form of epilepsy and referred by a doctor.

“We legalized CBD through the Compassionate Use Act -- that’s it,” said state Rep. Stephanie Klick, R-Fort Worth, a leading sponsor of the bill that created the state law. “Even if it is a hemp-derived product (instead of marijuana-derived), Texas has not legalized hemp.”

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But Klick’s view hasn’t stopped wellness centers, natural products retailers and vape shops that sell over-the-counter CBD produced out of state from opening throughout Austin and other Texas metro areas, based on the premise that it’s legal under federal law and not prohibited by state law at low levels of active ingredients. The stores have been capitalizing on nationwide hype touting CBD as something of a wonder therapy for everything from chronic pain to insomnia.

‘Hard-pressed to prosecute’

If such retail CBD actually is illegal in Texas, the penalty for a first-time offense is likely a Class A misdemeanor for selling it and a Class B misdemeanor for possessing it, according to the Texas District and County Attorneys Association. The group — which provides education, training and legal research to prosecutors — agrees with Klick that CBD is illegal in Texas outside the Compassionate Use Act, although enforcement has been scant and that opinion doesn’t appear to have been tested in court.

“That is how we interpret the current state of the law in Texas, but I don’t think it should surprise people to find out that (prosecutors) don’t think it’s the best use of their limited resources” to pursue a case involving a substance that isn’t intoxicating, said Shannon Edmonds, a staff attorney for the organization.

“Prosecutors have limited resources, and they have to make difficult decisions on how best to use those resources,” he said.

A case in point is Travis County, where a need to prioritize in an overburdened court system was among the drivers of a program enacted this year allowing first-time offenders caught with small amounts of actual marijuana — cannabis containing high levels of tetrahydrocannabinol, or THC, the euphoria-inducing component — to avoid criminal charges by taking a class instead.

Travis County District Attorney Margaret Moore and County Attorney David Escamilla both consider CBD — which doesn’t produce a high — to be illegal in Texas outside the Compassionate Use Act, according to their spokespersons. But Escamilla, whose office handles misdemeanors, isn’t focused on the issue.

“Technically, (CBD) is illegal,” said Dan Hamre, first assistant county attorney. “But on a case-by- case basis, we would be hard-pressed to prosecute anything like that. I doubt that the arresting agencies would even bring anything to us.”

Some other local law enforcement authorities disagree that all CBD sold outside the Compassionate Use Act is against state law, however.

Williamson County District Attorney Shawn Dick said his understanding is that retail CBD is legal in Texas if it’s sold as part of a product containing no detectable levels of THC.

Austi9n police Lt. Oliver Tate, who oversees a number of narcotics teams in the department’sArticles

organized crime division, said retail CBD is legal if it contains no more than 0.3 percent THC —

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which has been the federal definition of industrial hemp and is widely cited by retailers and other proponents as among the evidence that it is lawful.

Stay connected to Statesman: SubscribeFor comparison, the Compassionate Use Act allows the state’s three licensed dispensaries to

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produce and sell CBD products containing up to 0.5 percent THC. Marijuana for recreational

purposes generally contains from 9 percent to more than 30 percent THC.

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Tate said he sought and received guidance on the issue directly from the Department of Public

Safety. DPS officials didn’t address requests from the American-Statesman to comment on the legality of retail CBD or on what guidance the department provided to Tate. Instead, the DPS

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referenced a previous written statement saying it considers “a product with any detectable level of THC” to be illegal in Texas outside the Compassionate Use Act, although the department didn’t

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mention CBD specifically and noted that its position isn’t binding on other law enforcement agencies. clearUserState=true)

Melvin Patterson, a U.S. Drug Enforcement Administration spokesman, said it’s a misconception that CBD products containing O.3 percent THC or less are legal at the federal level.

The DEA recently downgraded a formulation of CBD in a new prescription-only epilepsy drug called Epidiolex on its list of controlled substances after the Food and Drug Administration approved Epidiolex as a treatment. But Patterson said all other CBD remains on the list of Schedule 1 substances considered to have no currently accepted medical use and high potential for abuse, despite the definition of industrial hemp.

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Regardless, the unlikelihood of enforcement would seem to make the question of CBD’s legality moot. But some observers contend the lack of a clear regulatory framework amid the retail boom has put consumers in jeopardy because they have little way of knowing what’s actually in the products or any recourse if it isn’t what’s advertised.

‘Complex and ambiguous’

Kyle Hoelscher, a Corpus Christi attorney and pro-marijuana activist, said he generally supports “flouting the law” on cannabis but advises clients that CBD probably is illegal in Texas and that they should be careful about purchasing it at retail stores anyway because it’s unclear what it might contain.

As for CBD itself, “the law is so complex and ambiguous, very learned people can have very different opinions on what a line of statute means,” Hoelscher said. “It’s highly unlikely that someone is going to go to jail (just for CBD), but I cannot sit here and say that it is my legal opinion that it is a legal chemical” outside the Compassionate Use Act.

Fears also have arisen that the burgeoning number of retail CBD shops across the state will undermine the Compassionate Use Act.

Morris Denton, chief executive of Compassionate Cultivation in Manchaca — one of the three medical cannabis dispensaries licensed under the restrictive law -- said he considers it likely that some customers potentially eligible to use his regulated products have opted instead for retail alternatives seemingly available at any corner store because they aren’t aware of the difference.

If state lawmakers “just allow (retail CBD) to run unchecked and they don’t expand the Compassionate Use Program (to include greater patient eligibility), then I think the program is in danger,” Denton said.

He said he’s also worried for patients, because “people are buying just basic, generic olive oil (in some cases) and thinking they’re getting all these benefits” from CBD.

The retail market “has run amok, and it is going to take a whole lot of effort to clean it up,” Denton said.

Klick, who helped sponsor the Compassionate Use Act, said she hopes to begin that process during next year’s session of the Legislature. She said her office is researching methods of better regulating the booming market for retail CBD, such as by enacting truth-in-labeling requirements or possibly

expanding the Compassionate Use Act.

Whatever action state lawmakers ultimately take, however, restricting the availability of CBD to fewer Texans might be a political nonstarter. The Texas Department of State Health Services briefly considered a plan last spring that would have forced retail stores to stop selling food and supplements infused with CBD, but the agency backed off after a public outcry.

CBD hasn’t gotten any less popular in the ensuing months, judging by the steady stream of customers entering Austin American Shaman, a new CBD retailer in North Austin, on a recent weekday. The store, which opened last month, is the first Austin franchise of Kansas City-based CBD American Shaman.

Elsie Dietrich, who owns the Austin store with her husband, Gene, said all of American Shaman’s products are independently tested to verify their contents, and all of them can be legally sold in Texas.

The last part of that statement appears to be open for debate, but Dietrich said she’s not concerned.

“We’ve seen (CBD) help so many people,” she said. “There are people that come through here that legitimately have so many issues. To us, if we are helping people get off opioids, it’s worth the risk.”

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For years, experts have predicted that if the cannabis industry expands at its current rate, the American market will reach $20 billion by 2020. But it turns out that one market is spinning off into a mega-industry of its own: according to a new estimate from cannabis industry analysts the Brightfield Group, the hemp-CBD market alone could hit $22 billion by 2022.

CBD, a non-psychoactive cannabinoid found in cannabis, has had a surge in popularity over the past couple of years. Unlike THC, the chemical compound that gives weed its signature effect, CBD has been shown to help with everything from PTSD and anxiety to MS and epilepsy — without getting you high.

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According to the firm’s projections, there would be increases in just about every sector that sells CBD — from dispensaries to smoke shops to medical companies. But perhaps the biggest push, according to Gomez, would be from big-box retailers and national chains who have been eager to get in on the lifestyle craze but have felt stifled by the current, muddy regulations.

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With more conservative states such as Oklahoma, Arkansas, Utah, and North Dakota taking steps to legalize cannabis, Texas feels increasingly like an outlier. Though some lawmakers have been showing signs that they’re ready to move forward on the issue, the state faces unique challenges that could continue to hold it back. Attached is agreat artilce that discusses current cannabis laws in Texas and the possible path going forward for cannabis reform. 

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The U.S. House panel that oversees federal drug enforcement is scheduled to vote this week on a bill to dramatically expand opportunities for research on the medical benefits of marijuana. Sponsored by Rep. Matt Gaetz (R-FL) and 40 bipartisan cosponsors, the Medical Cannabis Research Act would require that the federal government issue more licenses to grow marijuana to be used in scientific studies, among other changes. If enacted, the proposal will “increase the amount of research-grade cannabis available to unlock cures,” the congressman said. “This will be the first time that a cannabis reform bill will make it through the Judiciary Committee during Republican control of the Congress, ever.”

The long-awaited first meeting of the US House/Senate Conference Committee on the 2018 Farm Bill will take place tomorrow, Wednesday, September 5, at 9:30 AM.  9 Senators and 47 Congressmen will sit down for the first time to try to reconcile the differences between the two versions of the bill, with the hopes of final passage by September 30, when the 2014 Farm Bill expires.

This is such a great article discussing the possible benefits that hemp could bring to our struggling farmers in Texas. Here's the full text. 

Take a trip down the aisle of the nearest Whole Foods Market and it won’t take long to fill a shopping basket with products trumpeting the health and beauty benefits of a commodity Texas farmers are forbidden to grow: hemp.

Lotions, shampoos and shower gels boasting hemp’s essential oils and antioxidants. Shelled seeds, or hemp hearts, promising bigger boosts of protein and omega fatty acids than chia or flax seeds. Boxes of non-dairy hemp milk touting vitamins, minerals and amino acids for healthy hearts and glowing skin. All in packaging that if not displaying the leaves of the long-taboo cannabis plant itself is inevitably splashed with hearty doses of green.

There already are more than 25,000 identified uses for hemp, ranging from health foods and nutraceuticals to clothing, car dashboards, biodegradable plastics and construction materials like “hempcrete.” With the nation’s farm incomes near a 12-year low, it’s no wonder Texas growers want in on a market that’s expected to explode nearly sixfold to $1.65 billion in the U.S. alone by 2021.

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“Making money from farming has gotten harder and harder every year and it it’s just another crop that gives me something else to grow,” said Jeff Williams, a West Texas rancher who raises alfalfa, corn and winter cereal grains near Fort Stockton. He envisions not only growing hemp but also investing in a co-op to process it.

“I raise cattle. And you know who makes ultimately the most money year in, year out is the slaughterhouses,” he added. “The producers, the feeders, we’re at the bottom of the totem pole. For me this is such a monumental new industry, and to be able to jump in at the ground floor and not only grow but produce products, to be able to have both sides of that chain, is one of the most exciting things.”

Whether that becomes a reality depends on the Texas Legislature.

Hemp is a variety of the cannabis genus, as is marijuana, but the two plants are distinctly different. Hemp grows tall and spindly, while marijuana is shorter and densely packed. More importantly, hemp has nominal amounts of THC, the psychoactive compound that caused cannabis to become illegal during the Depression era.

Yet while hemp can’t get you high, proponents say many lawmakers in this conservative state are fearful a vote to legalize hemp would be a vote to legalize pot.

Under a provision of the 2014 farm bill, 40 other states already allow farmers to grow hemp as part of pilot programs with universities or state departments of agriculture.

U.S. Senate Majority Leader Mitch McConnell, R-Kentucky, whose bluegrass state once led the nation in hemp production, got wide bipartisan support for his 2018 farm bill provision to decriminalize hemp.

The measure would remove hemp from the Controlled Substances Act, which in 1970 classified marijuana (and hemp) as a Schedule 1 drug along with heroin, peyote and MDMA (ecstasy). It also would make growers eligible for crop insurance. Senate Minority Leader Chuck Schumer, a New York Democrat, cosponsored the bill.

“It’s Mitch McConnell’s bill but it’s cosponsored by Chuck Schumer as well as three dozen other senators,” Jonathan Miller, a Kentucky lawyer who serves as general counsel for the U.S. Hemp Roundtable, told members of the Texas House Agriculture & Livestock Committee during an interim hearing in July. “Can you imagine there’s any other issue than motherhood and apple pie that Mitch McConnell and Chuck Schumer agree on? But they’re both out there excitedly promoting this, which is a sign of true excitement of the industry.”

Kentucky’s pilot program has already resulted in about $17 million in gross product sales generating $7.5 million for hemp farmers and nearly 100 new full-time jobs. That’s a welcome development for farmers who have seen demand for tobacco steadily decline.

Hemp is not mentioned in the House version of the farm bill.

House Agriculture Committee chairman U.S. Rep. Mike Conaway, R-Midland, has said he is fine with it as long as it doesn’t cost crucial votes on a package that includes contentious work requirements for food stamp recipients that make up the bulk of the five-year spending plan.

“When it was over on the House side because of the food stamp issue the bill passed by only two votes,” Miller said. “They didn’t want to bring up the hemp issue because if it lost two votes then it would kill the bill.”

The two chambers will begin hammering out their differences in conference committee when House members return from their August recess.

Even if passed, the federal legislation would not pre-empt state laws.

Some Texas lawmakers already are convinced hemp production should be allowed in Texas. Legalization measures passed out of the state agriculture committee unanimously in both 2015 and 2017. But that’s as far as the effort got.

The Texas GOP’s 2018 platform supports legalization of hemp, and state Democrats’ 2018 platform supports legalization of recreational marijuana.

But so far, the only cannabis provision to make it into law is strictly regulated use of cannabidiol, or CBD, for treatment of intractable epilepsy. The allowance, known as the Compassionate Use Act, is so narrow Texas is not listed as one of the 30 states that allow medical-use marijuana.

“You’ve got this momentum going, but we have to somehow get these legislators beyond this knee-jerk response that hemp is marijuana and it’s going to cause everybody to become dopeheads and stuff,” said Laurance Armour, a Wharton farmer who thinks hemp could be a viable and less thirsty alternative to rice in a region whose sandy soils won’t sustain most row crops.

Rice farmers in the region were without water from 2012 to 2015 as drought conditions led the Lower Colorado River Authority to hold back water for reservoirs in Austin.

Cotton farmers also are interested in hemp as an alternative or rotator crop. According to Shawn Hauser, an attorney with the American Hemp Campaign, the per-acre value of hemp production is around $21,000 from seeds and $12,500 from stalks. As of May 1, the gross per-acre value for cotton and cotton seed was $637.

“Given Texas’ size, agricultural infrastructure, friendly business climate and low cost of resources,” she said, “we could likely be the biggest producer of all the states.”

Coleman Hemphill, chairman of the Texas Hemp Industries Association, said hemp’s advantages include the relatively time it takes to reach harvest, 60 to 90 days compared to about a 160 days for cotton.

“Just that reduced time frame is going to reduce a lot of the liabilities with the crop and the water consumption,” Hemphill said. “It’s not a silver bullet by any means, but it is resilient.”

Armour, the Wharton farmer, had just been at a water use luncheon with state Sen. Lois Kolkhorst, R-Brenham, who he said didn’t know of the difference between hemp and marijuana.

“It’s sort of the misconception that people have who are in a position to do something about legalizing it,” Armour said. “She said, ‘Well, what if you smoke it?’ I said, ‘Well, you’ll get a cough and a sore throat.’”

Asked to comment, Kolkhorst noted that she voted in favor of the 2015 Compassionate Use Act.

“In 2015, Texas enacted the Compassionate Use Act, which I supported to give some doctors the ability to prescribe low-THC cannabis for patients who have epilepsy,” she said. “In terms of expanding the conversation, federal law has traditionally included hemp within the same category as marijuana, but some states are experimenting with industrial hemp farming. I am confident Texas will continue to study this issue and listen to all sides of the debate during the next legislative session.”

Another common objection is that marijuana could end up hidden in hemp fields.

It’s an argument that’s quickly debunked, as cross pollination with hemp weakens marijuana’s THC content.

“The marijuana growers don’t get along with the hemp growers,” said Rick Trojan of Colorado Cultivars, the largest hemp farm in Colorado. “People that are growing high THC outdoors, they run the risk of having pollination and that crop ruined.”

Texas lawmakers largely have been mum about their positions on hemp legalization. Conaway’s office did not respond to an inquiry on whether he’d support hemp, nor did any of the five Texas congress members named to the farm bill conference committee.

Hemp, one of the oldest crops known to mankind, is believed to have originated some 10,000 years ago in Central Asia and arrived in America on board the Mayflower. The British Empire compelled colonists to grow hemp for such maritime uses as hempen ropes and canvas for sails. The Declaration of Independence was written on hemp paper. It was grown by both George Washington and Thomas Jefferson.

Accounts of why cannabis was essentially prohibited in 1937 vary, to include the theory Harry Anslinger, who led the Department of Prohibition, was looking for something new to ban after the prohibition on alcohol was repealed. Another popular explanation links prohibition to fears that minority groups were spreading a substance that incited madness and violence.

Elsewhere hemp has continued to be grown.

According to the Congressional Research Service, hemp imports to the United States totaled $67.3 million in 2017.

Ninety percent of the imports came from Canada. Other suppliers included China, Romania and other European countries, India, the Dominican Republic and Chile. The U.S. is the only industrialized nation to prohibit cultivating hemp.

“We currently cannot grow it but we can import it, said Jim Reaves of the Texas Farm Bureau, which is against legalizing marijuana but is for legalization of hemp. “We eat it, we make clothes out of it, we make all sorts of stuff out of it. ... I mean it’s grown in other states, this is a no-brainer.”

“We’ve been doing a lot of education just to make sure everybody understands this is not a bad thing,” Reaves added. “Over the last four years, we’ve had a 50 percent drop in gains from our crops and our crop production. This would give our farmers additional revenue, especially in some of those bad years.”

Nevada’s cannabis industry continues to sizzle, with revenue in the fiscal year ending June 30 totaling $529.9 million overall, including $424.9 million for recreational alone, state officials reported Tuesday.

According to the state, marijuana tax revenue for the first full year of adult-use sales totaled $69.8 million – about 140% of expectations – with the last four months of the fiscal year particularly robust.

“Nevada’s first year with a legal adult-use market has not only exceeded revenue expectations but proven to be a largely successful one from a regulatory standpoint,” Bill Anderson, executive director of the Nevada Department of Taxation, said in a news release.