Lt. Gov. Patrick Eyes Delta-8, Delta-9 Hemp Product Ban

posted on 4.22.2024

Texas Lt. Gov. Dan Patrick, R-Houston, has published his priority interim legislative study topics for the Texas Senate and they include consideration of a potential ban on the sale of Delta-8 and Delta-9 hemp products in Texas.

The federal 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 2019 Texas Legislature legalized the production, manufacture, and sale of certain hemp and hemp-derived products including 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.

Recent published accounts note that more than 7,000 Texas businesses are licensed to sell hemp products under the state statute which includes a provision for the legal sale of hemp-derived products with Delta-9 THC in concentrations less than 0.3%.

The legality of the sale of Delta-8 THC derived products has been the subject of a Texas court fight for several years.

An outright Texas ban on Delta-8 and Delta-9 products could impact an advertising category, which for some stations, is significant as Texas-licensed businesses have aggressively sought to advertise their wares. 

For now, the sale of certain types of CBD-related and other cannabis products is legal, as is advertising the same, 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 the CBD advertisements legal 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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