Is CBD Oil Legal In Texas

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In 2019, Texas legalized hemp, but not marijuana. The new law led to confusion about which marijuana products are legal in Texas. Meanwhile, support for legalizing the drug remains high in polling, and other cannabis-derived products like delta-8 have emerged. Much of the sudden spike in popularity is thanks to a Texas law last year that legalized hemp, the plant from which CBD is derived.

CBD, hemp, delta-8, medical marijuana: Here’s what you need to know about Texas’ pot laws

In 2019, Texas legalized hemp, but not marijuana. The new law led to confusion about which marijuana products are legal in Texas. Meanwhile, support for legalizing the drug remains high in polling, and other cannabis-derived products like delta-8 have emerged.

by Megan Munce and Megan Menchaca July 18, 2022 6 AM Central

Products containing delta-8 at Oasis CBD Wellness Shop in Brownsville on Nov. 8, 2021. Credit: Eddie Gaspar/The Texas Tribune

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Since Texas lawmakers in 2019 legalized some forms of the cannabis plant but not others, marijuana prosecution cases around the state have been thrown into disarray, and enforcement can vary greatly depending on where you live.

A new Texas law sought to bring the state in line with a 2018 federal law that legalized hemp while keeping marijuana illegal. The result: widespread confusion.

Here’s how Texas law currently stands on marijuana and other cannabis-derived products.

Hemp, marijuana, CBD and delta-8: What’s the difference?

Marijuana and hemp are often indistinguishable by look or smell because they both come from the cannabis plant. The difference amounts to how much of the psychoactive compound THC, or tetrahydrocannabinol, they contain.

Marijuana is classified as a cannabis plant or its derivatives that have a THC concentration of more than 0.3%. If the substance has less THC, it’s considered hemp.

Cannabidiol, or CBD, is a nonpsychoactive compound of cannabis. Businesses may sell it throughout Texas as long as its THC concentration is less than 0.3%. Supporters claim it can alleviate conditions such as anxiety, depression and insomnia. The U.S. Food and Drug Administration hasn’t evaluated many of those claims and has approved only one CBD treatment so far, Epidiolex, to treat seizures related to a rare genetic disease. It’s also approved three products that contain synthetic THC or THC-like chemicals.

Delta-8 is a psychoactive substance that is naturally produced in small amounts by cannabis plants. When concentrated in a lab, delta-8 can produce a similar “high” to marijuana, leading to its popularization.

OK, what is legal right now?

It is still illegal to use or possess marijuana under Texas law — and has been since 1931. What changed in 2019 is that hemp is considered different from marijuana.

Hemp was made legal federally by the 2018 Farm Bill and in Texas by House Bill 1325, which Gov. Greg Abbott signed in 2019. Now, CBD products are being sold across the state.

Manufacturing, however, is a separate issue. While hemp is legal to buy, sell and possess, the Texas Department of State Health Services bans the processing and manufacturing of smokable hemp within the state. That ban was upheld by a Texas Supreme Court ruling in June 2022, according to the Dallas Observer.

Medical cannabis is legal in Texas in very limited circumstances. Through the Texas Compassionate Use Program, Texans with a variety of conditions — such as epilepsy, autism, cancer and post-traumatic stress disorder — can access cannabis oil with less than 1% THC by weight. Medical cannabis can treat the symptoms of some of these diseases or reduce the side effects of other treatments, such as alleviating the nausea and loss of appetite associated with chemotherapy or reducing nightmares in patients with PTSD.

The fate of delta-8, however, is unclear. CBD businesses initially began selling delta-8 in Texas because its low THC concentration qualifies it as “lawful marijuana extract” under HB 1325. But in 2021, DSHS attempted to halt sales by classifying delta-8 as an illegal substance.

Delta-8 remains legal in Texas as an ongoing lawsuit against DSHS determines whether the agency can outlaw delta-8. A district court judge ruled DSHS didn’t follow Texas’ rule-making requirements when it listed delta-8 as an illegal drug and therefore can’t enforce the order making the drug illegal. The injunction will last only until there’s an official decision in the case. Hometown Hero, an Austin-based dispensary involved in the legal battle, did not respond to a request for comment, but said in a January 2022 YouTube video that no court date had been set for the case.

In May 2021, a federal court in California ruled in a separate suit that delta-8 products fall under the legal definition of hemp — and are therefore federally legal — so long as their THC concentration remained under 0.3%.

Are cannabis-derived products safe to use?

There are too many unanswered questions to make definitive claims about whether cannabis-derived products are safe or not, though the FDA says it’s currently working to gather more information about the safety of cannabis use. The Texas Medical Association has also called for more comprehensive study about the safety of cannabis-derived products and their efficacy as a medical treatment.

The Mayo Clinic, a medical nonprofit, writes that medical marijuana and CBD products are generally safe and well tolerated, and there is some evidence to show that it may treat the symptoms of specific diseases, such as multiple sclerosis.

However, any cannabis-derived products besides Epidiolex, Marinol, Syndros or Cesamet are not FDA-approved or evaluated to treat any disease or condition. The FDA warns they may also interact with other medications, leading to reduced efficacy or adverse side effects. It may also worsen the symptoms of mental health conditions, such as depression or bipolar disorder, according to the Mayo Clinic.

Cannabis-derived products may also cause side effects of their own, especially when used in large amounts. The FDA cautions that CBD products can cause liver damage, changes in mood and appetite and may impact fertility. There have also been reports of delta-8 products causing hallucinations, vomiting and loss of consciousness. In September 2021, the Centers for Disease Control and Prevention released a health advisory warning that it had observed an increase in health emergencies associated with delta-8 usage as the drug became more popular. Many of the cases involved children being exposed to the drug, which is often sold in gummy and other candy forms.

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Another safety concern is the potential contamination of non-FDA-approved products. Some CBD and delta-8 products can contain unsafe levels of household chemicals and other contaminants, such as heavy metals and pesticides. Some products labeled as CBD have also been found to contain THC, according to the Mayo Clinic. In April 2021, the U.S. Cannabis Council, a coalition of individuals, organizations and businesses advocating for the legalization of cannabis, tested 16 samples of delta-8 products sourced from across the country, including Texas. The testing, though limited, found that each of the products tested contained an illegal amount of THC, and several of the products contained copper, nickel and other toxic heavy metals.

The lack of a standardized formula is in part what makes it difficult to determine the general safety of using cannabis-derived products. Because THC and CBD concentration can vary so widely in product to product, it makes it hard to conduct reproducible trials on the effectiveness of the drug because it’s difficult to get a consistent dose every time, according to Texas-based neurologist Sara Austin.

In pharmaceutical-grade products such as Epidiolex, the FDA-approved seizure medicine, the dosage can be standardized across all products and tested in clinical trials. The same isn’t true of medical marijuana in Texas, in which case it’s up to individual doctors to decide how much to prescribe based on recommendation, rather than scientific data, Austin said.

You should not use THC or CBD products if you’re planning to drive. CBD can cause sleepiness or drowsiness, according to the FDA, and can impair your ability to drive.

In 2019, the U.S. Surgeon General also cautioned that marijuana usage during pregnancy and breastfeeding can disrupt fetal brain development and may lead to lower birth weight.

How do Texas marijuana laws compare to those of other states?

Nineteen states and Washington, D.C., have legalized recreational marijuana possession, according to U.S. News. In those states, marijuana use and possession is still regulated, but people are not criminally or civilly punished under state law.

As of May 2022, 10 states, including Texas, allow access to CBD products with low THC concentrations. Seventeen states allow higher THC concentration marijuana use for medical purposes, according to the National Conference of State Legislatures. Three states — Idaho, Nebraska, and Kansas — have no public cannabis access program.

In 27 states and Washington, D.C., possession of small amounts of marijuana for personal use has been decriminalized. Under many of these state laws, it is still illegal to use marijuana recreationally, but prosecutors do not press criminal charges. Instead, offenders face civil penalties, which usually include fines or drug education programs. However, in Texas, people arrested or cited for marijuana possession may still face legal penalties depending on the amount.

As of July 2022, 14 states have banned either delta-8 specifically or all unregulated forms of THC, which includes delta-8, according to NBC News.

What are the legal penalties of marijuana possession in Texas?

In Texas, possession of up to 2 ounces of marijuana is a Class B misdemeanor, which can be punishable by up to 180 days in jail and a $2,000 fine.

Possession of 2 ounces to 4 ounces of marijuana is a Class A misdemeanor that can result in a fine of up to $4,000 and up to a year in county jail. Possession of any amount more than 4 ounces would result in a felony charge.

Possession of drug paraphernalia — such as pipes or bongs, but not marijuana itself — is a Class C misdemeanor, which is punishable by a fine up to $500, but no jail time.

Are there efforts to legalize marijuana in Texas?

During the 2021 legislative session, both Republicans and Democrats in the Texas House made renewed attempts to lessen criminal penalties for marijuana possession. Some of the bills introduced included getting rid of jail time for possession of small amounts of marijuana and eliminating automatic driver’s license suspensions. Some passed the House, but none were successfully signed into law.

Both Gov. Greg Abbott and Beto O’Rourke, the Democrat running against him in the race for governor, have voiced support for decriminalizing marijuana, with O’Rourke campaigning on legalizing the drug.

In its official platform, the Texas Republican Party supports the federal government moving cannabis from a Schedule I drug — drugs with a high potential for abuse and no medical usage — to a Schedule II drug — drugs that have accepted medical uses but still have a high potential to be abused. While this change would federally recognize cannabis use as a medical treatment, it would still remain illegal for recreational use at the federal level.

How are cities and counties handling marijuana possession?

Many Texas prosecutors, Republicans and Democrats alike, are dropping low-level marijuana possession charges and declining to pursue new ones altogether.

Before the hemp law passed, law enforcement agencies in Harris, Dallas, Bexar and Nueces counties had already stopped arresting many people found with small amounts of the drug on a first offense. Instead, they may offer diversion programs to keep defendants out of jail or issue citations for people with a misdemeanor amount of marijuana.

In June 2019, the Texas Department of Public Safety — the state’s largest law enforcement agency — ordered its officers not to arrest people but to issue citations if possible in misdemeanor marijuana possession cases, which still carry a penalty of up to a year in jail and a $4,000 fine.

The Austin City Council voted unanimously in January 2020 to end most arrests and fines — and ban spending city funds on testing — for possession of small amounts of marijuana. Those policies were codified this May, when Austin voters approved a ballot measure effectively decriminalizing marijuana.

Other cities, such as El Paso and Plano, have begun using “cite-and-release” policies, in which people found possessing small amounts of marijuana will be cited instead of arrested. These policies don’t completely decriminalize marijuana — those cited may still face fines and potential jail time — but they do reduce arrests and immediate jail time.

In Bexar County, cite-and-release policies saved $2.6 million in taxpayer money between July 2019 and December 2020 by reducing the number of people held in county jail for misdemeanor marijuana offenses and the number of cases being prosecuted by the local district attorney, according to KSAT.

How has the law impacted arrests in the state?

After the 2019 bill was passed that legalized hemp in Texas, Gov. Greg Abbott and other state officials insisted that the bill didn’t decriminalize marijuana. But the law was still followed by a large decline in marijuana arrests across the state as some counties stopped prosecuting marijuana possession cases and others lacked the testing capabilities to differentiate between marijuana and legal hemp.

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Prior to June 2019, when the law went into effect, Texas prosecutors filed upwards of 5,000 misdemeanor marijuana possession cases a month. That then steadily declined, dropping below 2,000 cases a month by November 2019.

Between January and May of 2022, 1,745 marijuana possession cases were filed per month on average, according to data by the Texas Office of Court Administration.

What do the polls say?

Polls have shown that support for some form of marijuana legalization has stayed strong throughout the past few years.

In a June 2018 University of Texas/Texas Tribune Poll, 84% of the state’s voters would legalize pot, either just for medical use (31%), in small amounts (30%) or in any amount (23%).

A May 2022 by The Dallas Morning News/UT-Tyler found similar support for legalization: 83% of Texas voters would support legalizing marijuana for medical use and 60% would support legalizing recreational use.

Disclosure: National Conference of State Legislatures (NCSL) and Texas Medical Association have been financial supporters of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.

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CBD products are everywhere in Texas since the state legalized hemp. Experts warn: buyer beware.

Much of the sudden spike in popularity is thanks to a Texas law last year that legalized hemp, the plant from which CBD is derived.

by Naomi Andu Jan. 23, 2020 12 AM Central

A hemp plant inside of the Custom Botanical Dispensary in Austin. Stores selling CBD products are popping up across Texas. Credit: Marjorie Kamys Cotera for The Texas Tribune

In 2017, business was slow for Sarah Kerver. She was a sales rep for a Colorado-based company trying to push hemp and CBD products in Texas. But customers were apprehensive.

“No one wanted to touch [CBD]. No one wanted to talk about it. No one was interested in carrying this product in any sort of spa or retail space,” Kerver said.

Today, the market for CBD, or cannabidiol, is exploding. Stores are popping up across the state selling tinctures and topicals. It’s being mixed into smoothies and coffee at cafes. Spas are advertising CBD massages and therapies. And much of the sudden spike in popularity is thanks to a Texas law last year that legalized hemp, the plant from which CBD is derived.

“You go anywhere now, and you find something that says ‘CBD’ on it,” said Kerver, who’s now in talks with Austin distributors interested in carrying her CBD product line, called 1937 Apothecary.

But buyer beware, experts warn. Anyone can sell CBD in Texas. Many of the products are advertised as natural alternatives to prescription medications and make unfounded claims to treat conditions like chronic pain, depression, anxiety, insomnia, diabetes and psychosis. None of these claims are recognized by the U.S. Food and Drug Administration.

And because of lax labeling and licensing regulations, unsuspecting consumers may not actually know what they’re buying.

“Unless you really know that it’s something reputable, I would say to be wary because you don’t really know that it is even CBD,” Kerver said.

Booming business

In 2018, the federal government passed a new Farm Bill legalizing hemp and derivatives, like CBD, with less than 0.3% of THC, or tetrahydrocannabinol. Hemp and marijuana are both part of the cannabis plant family, but while marijuana is rich in THC and produces a high, hemp contains only traces of the psychoactive compounds and is richer in CBD.

In June, Gov. Greg Abbott signed a bill legalizing hemp and bringing state policy in line with federal law.

Confusion on the part of law enforcement has led to the wrongful arrests of some in possession of CBD or hemp even after the Texas law went into effect. Still, the policy change is an important step on the way to allowing Texans to partake without fear of reprisal, according to Lisa Pittman, a lawyer on the Texas Department of Agriculture’s industrial hemp advisory council.

Sarah Kerver is the owner of Custom Botanical Dispensary in Austin. Credit: Marjorie Kamys Cotera for The Texas Tribune

Because Kerver launched her line before the Texas bill, she’s seen firsthand how changes in the law have led to evolving attitudes in Texas about the products. Previously, she was able to sell Colorado CBD products before the federal government legalized hemp because of the 2014 Farm Bill, which started a pilot program for participating states to grow industrial hemp.

“There’s been more media around it since Texas has come on board, definitely,” Kerver said. “Texans are becoming more educated about it and much more open to it.”

Industry leaders say they can’t calculate the exact number of new CBD businesses that have opened in Texas over the past year — in part because the Texas Department of State Health Services won’t implement licensing requirements until early this year — though anecdotally, many say they’ve seen an uptick.

The Austin Chamber of Commerce counted at least three CBD-related relocations or expansions since the bill passed last summer, creating about 140 new jobs in the emerging sector. But the list, which is compiled from public media announcements and deals the chamber is involved in, isn’t comprehensive.

Sisters Shayda and Sydney Torabi founded Restart CBD in September 2018, just before the Farm Bill passed. Sydney Torabi said the changes in the law have made business run more smoothly.

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The two originally intended to operate the business exclusively online but decided to open a brick-and-mortar location in Austin after having difficulty with several online payment companies, from mom-and-pop merchants to giants like PayPal, that didn’t want anything to do with cannabis.

“We were a business, but it wasn’t as functional as it could’ve been until the [Texas] law passed,” Sydney Torabi said.

The Torabis started with a pop-up store and expanded to a permanent location last April, a month before Texas law changed.

“We were operating in a gray area until the Texas bill passed,” Sydney said. “It did take away a little bit of the stigma. Like, ‘OK, now it’s legal in Texas. We can go to a CBD shop and not feel like we’re doing something bad.’”

Kerver owns her own CBD product line, called 1937 Apothecary. Items at the store range from magazines, capsules, tinctures, edibles and hemp oil. Credit: Marjorie Kamys Cotera for The Texas Tribune

A cure-all?

CBD comes in many forms: smokeable flower, tinctures, topicals, edibles and much more.

It’s not cheap. For example, offerings at Custom Botanical Dispensary, Kerver’s Austin-based collective, range from capsules ($96 for 30) and a Full Spectrum Tincture ($82 for 1 ounce) to a PMS Dark Chocolate Bar ($18), infused popcorn ($7) and even Pet Hemp Oil in flavors bacon and tuna ($40).

Despite lofty and wide-ranging claims, CBD is only FDA-approved to treat two rare kinds of epilepsy via prescription drug Epidiolex. In part, this is because little research has been done in the U.S. on the hemp derivative.

But the FDA also says the jury’s still out as to whether CBD is considered a safe substance.

“CBD has the potential to harm you, and harm can happen even before you become aware of it,” the agency said in a November consumer update, going on to list potential repercussions like liver injury. The effect on children and pregnant or nursing women is unknown, the FDA added.

In the meantime, businesses nationwide are getting wrist slaps for making medically unproven promises.

In November, the FDA sent warning letters to 22 CBD sellers across the country, including Noli Oil in Southlake. The letter to Noli Oil cited a myriad of illegal health claims, from inhibiting cancer cell growth to treating schizophrenia and antibiotic-resistant infections.

Also flagged was the company’s sale of edibles, like gummy bears and caramels, in interstate commerce. While CBD-infused food products can be manufactured and sold in Texas, they can’t cross state lines because the FDA considers the compound an “adulterant.”

Other sellers were targeted for falsely marketing CBD as a dietary supplement.

When it comes to touted benefits, Dr. Yasmin Hurd of Mount Sinai’s Addiction Institute said she’s cautiously optimistic.

“Can I say go be a guinea pig yourself? Unfortunately, just because of my position, I can’t really approve that,” Hurd said. “But clearly, hundreds of thousands of people are doing research on themselves and trying to find out what works on their particular ailment.”

There is some evidence to suggest it could be beneficial for anxiety, psychosis and substance abuse, Hurd said. Other claims, like its effect on chronic pain, are more dubious, at least until more research is done, she added.

But Kerver said her own experience and the testimonies of friends and family have convinced her of CBD’s efficacy.

Her husband found relief from inflammation after back surgery, and her siblings from anxiety and sleep issues. She said she has seen her own gut problems clear up completely.

“When someone has been constantly taking something for well over a year, and it’s still working for them for the same thing, and they have to have it, that’s not the placebo effect anymore,” Kerver said.

A display case inside the Custom Botanical Dispensary in Austin. Credit: Marjorie Kamys Cotera for The Texas Tribune

Hurd also warns that CBD can impact the performance of other medications, so those interested in trying it should first consult a doctor to learn more about potential interactions. Otherwise, CBD is relatively safe, she said, with the most common side effects being diarrhea and sleepiness.

Until stricter regulations, like requiring retailers to have CBD-specific licenses, are put in place this year, Kerver said there is little protecting consumers from bad actors. Still, there are some measures people can take to protect themselves while the Texas hemp industry is in limbo, starting with labels and vendors.

Pharmacies and health food stores are preferable to smoke shops and gas stations, according to Pittman.

“Avoid anything that has a pot leaf on it or that doesn’t look like a clean, medical product,” Pittman said.

Any reputable company will make test results easily accessible, and customers can use them to check THC content; trace amounts under 0.3% may still cause someone to test positive for marijuana on a drug test, Hurd said.

Buyers should also be wary of products that make any explicit health claims, which are considered illegal by the FDA. While retailers can say a particular CBD product helps alleviate a symptom, like difficulty sleeping, they can’t say it treats or cures a diagnosable condition, like insomnia, according to Pittman.

“That’s where we walk the fine line,” Kerver said. “We can’t say anything, but luckily we’ve been in business long enough to go, ‘I’ve got 10 customers, they all use this for sleep, and they’re all coming back for it for sleep, and they buy it every month for sleep, and they’re really happy with it.’”

Correction: An earlier version of this story incorrectly stated how Texas criminally classified hemp before the state’s hemp law was passed.

Disclosure: The Austin Chamber of Commerce has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.

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