Marijuana Moment: New Texas Hemp THC Product Restrictions Take Effect On Friday—But What Will Stay Legal?

[Tokeativity]

“It’s a pretty big blow, and it’s recriminalizing a lot of cannabis products that have been completely legal and allowable in the state for many years, so we’re taking steps backwards toward prohibition.”

By Katlyn Ma, The Texas Tribune

Texans’ access to a variety of hemp-derived THC products will significantly narrow on Friday.

Texas will ban several hemp-derived THC cannabis products, including those containing delta-8 and delta-10 THC variants, punishing people in possession of them with jail time and fines. However, delta-9 THC, the most commonly sold THC product in Texas, will remain legal.

This is the latest blow to the state’s hemp industry, which has been consumed with uncertainty over the last several months as flurries of court actions have ripped products off shelves and then put them back on.

The recent change stems from a Texas Supreme Court decision in May that allowed the Texas Department of State Health Services to reclassify all hemp-derived THC, except for low-dose delta-9 THC, as a schedule I drug, prohibiting its possession and sale in the state. The ruling ended a 2021 injunction that paused DSHS from enforcing the new classification, which effectively allowed stores to stock different kinds of THC for the past five years.

Cannabis experts say Friday’s ban could remove more than half of the THC products off some stores’ shelves.

“It’s a pretty big blow, and it’s recriminalizing a lot of cannabis products that have been completely legal and allowable in the state for many years, so we’re taking steps backwards toward prohibition,” said Sarah Todd, media representative at Texas Cannabis Policy Center.

Here’s what to know about the THC ban.

What is banned?

The ban applies to all synthetically created THC forms, including delta-8, delta-10, THCP and THCA flower. The one exception will be delta-9 products with less than 0.3 percent THC by dry weight.

Delta-8 and delta-10 give a weaker high, which is why some consumers might choose these options, said Joao Mitchell, manager of ATX Organics and legislative director of Texas Cannabis Collective.

Delta-9, which naturally occurs in cannabis and is not typically synthetically derived, will remain the only THC option for Texas consumers because the federal 2018 Farm Bill legally defines hemp as cannabis containing no more than 0.3 percent delta-9 THC and it does not list other cannabinoids.

Can Texans still find intoxicating THC?

Yes, consumers can still buy intoxicating products as long as they contain legal amounts of delta-9. This includes continued access to delta-9 edibles, drinks, and tinctures.

A statewide ban on the sale of smokeable hemp, such as flower buds and rolled joints, was supposed to go into effect on March 31, but a court ruling has paused it, so delta-9 smokeable hemp will also still be available to consumers.

Texas banned the sale of vape pens containing THC in the last legislative session.

Why is this happening?

The July 31 ban follows a Texas Supreme Court decision that cleared the way for the state to enforce a 2021 Department of State Health Services rule classifying delta-8 THC and other synthetic hemp-derived THC variants as schedule I controlled substances.

In 2021, Austin-based hemp retailer Hometown Hero and other hemp businesses sued DSHS, arguing that the state had overstepped its authority and contradicted the 2019 Texas Farm Bill which excluded hemp from the definition of marijuana and prevented THC in hemp from being a schedule I drug.

DSHS argued that hemp-derived THC products should be treated as controlled substances because they are psychoactive drugs. For years, some lawmakers have tried to ban all THC products over concerns that they harm children.

Data provided from the Texas Poison Center Network confirms a sharp increase in cannabis-related poisoning calls starting in 2019, a year after hemp-derived THC was legalized by the federal government, from 923 to 2,669 last year. The majority of these calls involve suspected poisoning of children under the age of five and teenagers.

In Texas, customers must be at least 21 years old to purchase THC products.

“This is a major development for Texas families,” said Aubree Adams, director of Citizens for a Safe and Healthy Texas, about the latest restrictions. “It’s about time, Texans need to know that this industry does not sell safe products.”

A temporary injunction blocked enforcement of DSHS’ 2021 rule while the case played out, allowing businesses to expand beyond delta-9 products and build a market around delta-8 and other intoxicating hemp variants. After the Supreme Court reversed that injunction, DSHS reinstated the old definitions which are set to take effect July 31.

“This is not a good thing for the industry. It’s difficult to understand and lacks clarity,” said Cynthia Cabrera, chief strategy officer at Hometown Hero. While Hometown Hero does not have plans to challenge the state Supreme Court’s decision, Cabrera said two businesses are preparing lawsuits.

Adams said she also wants to see delta-9 ultimately banned. “We want the sale of these products out of our Texas neighborhoods.”

What will happen to Texans caught with illegal THC products?

Once THC variants are classified as a schedule I drug, possession of illegal THC products will be treated as a state jail felony, which carries a punishment of 180 days to two years in prison and fines of up to $10,000, say cannabis experts.

“Now that we’re criminalizing these substances that have been federally legal for the past five or six years, we’re now creating a new pipeline for people to go to prison and spend millions of dollars within the legal system, and just further disenfranchise a lot of people,” said Mitchell.

Industry advocates say that criminalizing THC products will only push consumers toward unregulated and more expensive options. “Recriminalizing cannabis products only empowers the illicit market and puts these licensed and regulated companies out of business,” said Todd with the Texas Cannabis Policy Center.

What does the reclassification mean for the hemp industry?

The July 31 ban will reshape Texas’s hemp industry, Todd said.

Cannabis experts estimate the reclassification could take 60 percent to 90 percent of THC products out of circulation. Todd says some businesses will have to pull most of their THC products off shelves, causing them to shut down.

“It is going to do irreparable harm,” said Mark Bordas, executive director of Texas Hemp Business Council.

In anticipation of this ban, some businesses have already begun transitioning away from delta-8 and THCA, like he has, said AJ Vazquez, owner of Dooby’s Smoking Depot in Austin. But, he still anticipates that his sales will take a 25 percent hit.

If they are caught selling the banned substances, businesses could lose their consumable hemp licenses, face fines of up to $10,000 per violation, and be criminally charged with manufacturing or distributing a schedule I substance, said Mitchell with ATX Organics.

He said about 50 percent of his store’s products will be removed from their shelves and he predicts that stores that don’t focus on natural THC will probably have to remove somewhere between 75 percent to 90 percent of their product.

There are about 14,000 retail stores statewide that are licensed to sell consumable hemp, according to the Department of State Health Services.

This article first appeared on The Texas Tribune.

The post New Texas Hemp THC Product Restrictions Take Effect On Friday—But What Will Stay Legal? appeared first on Marijuana Moment.

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