Federal Movement on Cannabis Advertising, but Texas Still Prohibits Most Types of Cannabis Products

posted on 8.08.2022

Texas broadcasters may have read recent trade articles on the prospect of the federal government relaxing restrictions on the advertising of cannabis-related products such as marijuana, but so far, the legislative efforts stress that the provisions would only apply to those states in which marijuana is legal.

Attorney David Oxenford of TAB Associate member law firm Wilkinson Barker Knauer recently noted in his BroadcastLawBlog.com that three different congressional legislative efforts are now underway to lift any prohibitions on broadcasters running these ads by businesses in states where marijuana has been legalized.

TAB has been supportive of the efforts to clarify in federal law that broadcasters should not be sanctioned for such advertising, but it does so with the knowledge that advertising cannabis-related products in Texas is highly regulated and marijuana is currently illegal here.

While there have been bills filed in Texas to legalize marijuana, the Legislature has been reluctant to join the growing chorus of states that have legalized marijuana sales, despite the enormous amounts of state government revenue derived from such sales.

Members of both parties have filed bills seeking to either decriminalize the possession of small amounts of marijuana or legalize the sale or marijuana in small quantities by licensed vendors.

In Texas, only medical marijuana is legal and only under very stringent regulations which limit sales to a handful of state-licensed vendors that have no need to advertise as the products may only be used by prescription for a limited set of medical conditions.

Similarly, the sale of consumable goods containing cannabidiol—popularly known as “CBD,” must be of a low-level of the active ingredient tetrahydrocannabinol, or THC, and only derived from legal hemp, another plant species of the cannabis family.

State lawmakers passed legislation in the last decade which allows the commercial production of hemp in Texas.

“Broadcasters should avoid advertisements for CBD products derived from any source other than legal hemp,” said Stacy Allen, an attorney with TAB’s Texas legal counsel, Jackson Walker LLP.

“Stations should also ask advertisers to warrant the purity and THC content of their products—only hemp-derived products with Delta-9 THC in concentrations less than .3% are legal.”

Allen and the Jackson Walker legal team prepared a legal brief earlier this year on the status of cannabis-related products in Texas and what is currently legal to advertise in state.

CBD Advertisements—Current Law and Best Practices, may be found in the Legal Guides and Legal Hotline portion of the Members Only section of the TAB website.

The brief covers the basic legal landscape of such products in Texas, from the sale of hemp-derived products to illegal marijuana.

It also reviews Texas’ “compassionate use program” (CUP) that allows physicians to prescribe low-level THC cannabis for medical purposes.

Questions? Contact TAB’s Michael Schneider or call (512) 322-9944.

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