The Chronicle I’ve reported a lot about the havoc Texas has made with its cannabis laws and regulations since it finally began collapsing in 2019 to create a legal cannabis industry in the state. Immediately upon the entry into force of House Act 1325 in June of that year, it became apparent that most police and prosecutors in Texas could not prove the difference between low THC cannabis (less than 0.3% delta-9-tetrahydrocannabinol dry weight concentration), which is Legal “hemp” or “synthetic hemp” under federal and state law, higher THC cannabis is still known in Texas law as “marijuana.” This led to the decriminalization of possession of small quantities of cannabis de facto in much of the state, and made it more deliberate in cities like Austin that directed their police forces to end enforcement.
The federal HB 1325 and 2018 Farm Bill, which for the first time make low THC hemp a legal agricultural good, include provisions intended to draw bright lines between legal and illegal hemp production. Texas law states that growers and producers licensed by the Texas Department of Agriculture cannot process or manufacture cannabis for smoking or vaping.
However, they are less prescriptive when it comes to the consumer market for cannabinoid products such as CBD (Cannabidiol, most common on the market and in the hemp plant) or Delta-8-THC. Instead, HB 1325 directs the Department of State Health Services to develop a regulatory scheme for distributors and retailers. When DSHS introduced its cannabis consumer program in August 2020, it excluded any hemp products that were supposed to be smoked or fumigated. A group of retailers, with industry backing, promptly and successfully sued to block the rule’s application, arguing with their Delta 8 colleagues that the current situation The market is doing well and DSHS has overstepped its bounds.
In the case of smokeable cannabis, the plaintiffs note that the distinctions between product types — smoke, vape, dye, edible, and more — no longer have a significant impact in the cannabis industry, which can produce all of these at different concentrations of different cannabinoids to meet consumer preferences. The Delta 8 dispute marks a next stage in this development, and another quandary for a conservative state system that wants to make cannabis legal (and profitable) and illegal (and heavily punished) at the same time.
While Texas Agriculture Commissioner Sid Miller, a huge supporter of the industry, positions hemp as an entirely regular fiber crop, just like cotton — “we grow rope, not steroids” — the money being made now is from hemp products like CBD oil, Which can be converted in the lab to Delta-8. As the DSHS struggles to maintain the state’s fanciful stance on cannabis, the FDA is frantically trying to keep pace with the boom of CBD and Delta-8 among the nutritional supplements, pharmaceuticals, cosmetics and food additives it regulates. Although the FDA warns consumers that no Delta-8 or CBD products have been evaluated for safety or efficacy, and has issued some warnings to companies making unsubstantiated health claims, it “recognizes the potential for [therapeutic] The opportunities that cannabis or cannabinoid-derived compounds may present and acknowledges significant interest in these possibilities,” according to their website. Because drugs including CBD and THC are through or have completed the FDA drug approval process, those cannabinoids cannot, under federal law The Food, Drug, and Cosmetic Act is marketed as a dietary supplement or added to human or animal foods, although the FDA has shown little interest in law enforcement.