Texas Hemp Shop Raids Illustrate Issues in Advertising Hemp and Cannabis Products in Texas

posted on 11.06.2023

A recent national newspaper article concerning Texas law enforcement agency raids of local hemp shops illuminates issues for broadcasters in advertising of such products.

The 2018 Farm Bill legalized certain practices relating to the production and marketing of hemp, defined as the plant Cannabis sativa, and allowed states to assume primary regulatory authority over the production of hemp in their jurisdictions.

The State of Texas legalized the production, manufacture, and sale of hemp and hemp-derived products through action of the 2019 Legislature. 

Legislation included consumable goods containing cannabidiol—popularly known as “CBD.”  

Previous sessions of the Legislature allowed the sale, by prescription only, of certain low-level THC cannabis under the state’s “compassionate use” law.

Add to this mix is an ongoing court fight over the sale of Delta-8 THC products in Texas. 

A Texas appeals court recently upheld an injunction halting a ban on the sale of such products in Texas. 

The State of Texas is expected to appeal the decision.

All of these developments mean certain types of CBD-related and other cannabis products are legal to sell (and advertise) in Texas, but it is quite specific.  Stations accepting such advertising do so at their own risk and therefore must do the necessary due diligence or risk the consequences of advertising an illegal product.

TAB’s longtime state legal counsel, Jackson Walker LLP, has prepared an advisory on advertising marijuana and hemp-based CBD products under current Texas law.

View guide...

The recent regular session of the Legislature did nothing to change the status of any products mentioned in the advisory.

The main takeaways from the advisory are:

• Marijuana remains illegal in almost all contexts, and only three entities are authorized to dispense it for medical use under the Texas “compassionate use” law. Broadcasters should deal only with those entities and should not air advertisements that depict consumption of marijuana.
• Broadcasters should avoid advertisements depicting consumption, suggesting illegal drug use, targeting children, or promising miraculous medicinal results that have not been adopted by the FDA.
• Broadcasters should avoid advertisements for CBD products derived from any source other than legal hemp. Broadcasters 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.
• Broadcasters should only air advertisements for CBD processed by licensed manufacturers, from hemp grown by licensed producers, and sold by registered distributors. Where possible, broadcasters should obtain appropriate representations, warranties, indemnification, or other certifications from prospective advertisers as to those issues.

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

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