AUSTIN — The state of Texas will soon remove hemp from its list of controlled substances.
On April 5, the Texas Department of State Health Services will no longer classify hemp as a “Schedule I” drug, a highly restricted group of substances that includes LSD, heroin and cocaine. The government lists a substance in that category if it’s considered to have a high potential for abuse and no accepted medical use.
For cannabis-related businesses and advocates, the step is a welcome change they said underscores the legitimacy of their products.
But legal experts added removing hemp from the list of controlled drugs does little to clear up confusion about the legality of hemp products — including gummies, pain creams and oils — that are already on store shelves in Texas.
“It doesn’t make [hemp] legal,” warned Lisa L. Pittman, a cannabis law attorney who splits her time between Austin and Denver. “There does need to be a legislative change for the criminal penalties.”
State lawmakers will debate a slew of bills Monday that, if passed into law, could clarify how police and other law enforcement should enforce cannabis laws, and clear up once and for all what 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 a high. But state law still defines hemp and marijuana as the same substance and outlaws the possession and sale of both in most cases.
In fact, only a small number of Texans can legally buy cannabis products with any THC. The state’s Compassionate Use program, established in 2015, allows patients with intractable epilepsy and two doctor’s prescriptions to buy cannabis-based medicine with up to 0.5 percent of THC. Three companies have state licenses to grow marijuana, produce and sell the low-THC medication.
For everyone else, marijuana and hemp products with THC have been illegal for years. Growing the hemp plant here also remains off limits. The only legal hemp products are those grown elsewhere that contain no THC, such as sterilized seeds added to smoothies, fiber from the plant’s stalks for industrial or construction projects or oil for cooking or topical use.
Cannabidiol, or CBD, is a cannabis compound that can be extracted from marijuana or hemp. Only hemp-based CBD products without THC are legal here.
Edible CBD products and others advertised to have medical benefits face additional restrictions. For example, a topical THC-free CBD oil derived from hemp that’s used for muscle cramps? That’s probably OK under state law. But hemp oil with trace amounts of the psychoactive compound or claims that it will cure you of anxiety, stomach problems or other ailments? They’re restricted by the Food and Drug Administration, along with any edible CBD product.
So does removing hemp from Texas’ list of scheduled drugs change any of this? Most legal experts say no.
“It’s really not going to have any direct impact other than to confuse people even more,” said Shannon Edmonds, staff attorney with the Texas District and County Attorneys Association.
Last year, the U.S. Congress legalized hemp that contains less than 0.3 percent of THC. It also made it easier for businesses and customers to transport hemp across state lines and for farmers to grow it as a crop.
But federal lawmakers’ stamp of approval doesn’t necessarily mean anything in Texas. The state health department’s decision to declassify hemp as a controlled substance only partially brought Texas in line with federal law. State lawmakers would have to amend the definition of hemp and the existing criminal penalties for buying and selling it to bring it into full alignments, Edmonds said.
The bills to be debated Monday in the Texas House Committee on Agriculture and Livestock could decriminalize possession of hemp with less than 0.3 percent of THC or set up a program that would let Texas farmers grow the plant as a crop, or both. The Texas Republican Party is supportive of the legislation. Marijuana will remain illegal even if these bills become law.
But not everyone agrees hemp products will remain off limits next month.
Chelsie Spencer, a Dallas-based cannabis attorney, interprets hemp’s removal from the controlled substances list differently, and believes retailers and consumers have an argument that federally-defined hemp products will be legal come April 5. However, she notes this argument is untested in Texas courts.
“[Consumers] need to make sure the store is sourcing from a certified farm or facility,” Spencer said. “When they’re standing in that CBD shop, they need to be asking for that certificate of analysis,” which includes independently verified lab results that describe what’s in the product.
Still, she’s encouraging lawmakers to clear up any ambiguity in the law since a cop could make an arrest anyway.
“Our Legislature really needs to get busy on fixing this,” Spencer said.
On this point, Pittman agreed: “If there’s even confusion among lawyers and lawmakers, the poor police have no idea.”
If it’s illegal, why can I already buy this stuff?
Law enforcement in different cities and towns are also enforcing the law differently.
Cops in Dallas County haven’t prioritized raiding local shops or arresting people for buying potentially illegal hemp products because it’s not a top public safety concern. This is true in many other Texas cities, where police have also quit arresting people for possessing small amounts of marijuana.
But in Tarrant County, the district attorney issued a statement saying CBD oil is illegal. A few weeks later, local police raided shops in Fort Worth.
Pittman described it as “another disconnect” between what the law says and what’s happening in real life: “The law on the books versus the law in action.”
But even if stores are raided or users arrested, the charges are often dropped and the products returned because each has to be individually tested to prove it’s illegal under state law, Edmonds said. Many local district attorneys believe it isn’t worth the time and money.
Facing little or no enforcement, Texas businesses have continued to sell the products at retail locations from gas stations and smoothie shops to specialty stores.
Dafna Revah 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 opened three stores in the Dallas area and have 17 others in the Chicago and St. Louis areas.
Revah said the company hasn’t had any trouble with Texas law enforcement 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 now count firefighters and police officers as customers.
Revah said the declassification of hemp may put businesses and Texas customers at ease.
“It’s really exciting that it’s going the right direction, and state officials are finally doing what the people want,” she said.
CBD Kratom stores do not sell any products that are marketed as containing THC, she said. Since such products aren’t FDA approved, she said she monitors quality by reviewing test results and getting to know the companies.
Still, she said, it’d be helpful for the state to pass a law to prevent the patchwork enforcement by state agencies and police departments.
She said states like Texas need to keep up as a growing number of major retailers, from Whole Foods to Neiman Marcus, sell hemp-derived beauty and wellness products. Pharmacy chain CVS recently announced it will sell topical hemp-based CBD products, such as creams and sprays, in eight states.
“There are a lot of big players now, so I don’t think it’s going anywhere,” Revah said.