Testing Wrinkle Could Complicate Texas’ New CBD Oil Regulations

posted on 7.08.2019

Texas lawmakers were all smiles on June 10 when Texas Gov. Greg Abbott signed HB 1325, the Hemp Farming Act, by St. Rep. Tracy King, D-Uvalde, into law. The Act legalized industrial hemp farming as well as production and sale of certain types of CBD oil manufactured from hemp.

While the move means Texas farmers have a new, drought-resistant cash crop, Texas broadcasters will benefit from a new advertising category for stations – legal CBD oil produced from hemp containing 0.3 percent or less of tetrahydrocannabinol (THC), the chemical compound that produces the “high” for which marijuana is known.

The Act establishes testing and labeling requirements that remove uncertainty of advertising such products.

Some potential CBD oil advertisers had claimed that their products were THC-free, but law enforcement raids had shown otherwise. Law firms staffing TAB’s Texas legal hotline, noting such testing outcomes, have advised stations that advertising CBD oil products in Texas is done at the station’s risk.

It was anticipated that testing and labeling of such products would begin as soon as the state put the actual regulations in place, a move that was expected to take a few months, but certainly by the end of the year. 

But there’s a new testing wrinkle that could delay implementation of the law:  there’s just one Texas-accredited private lab that’s capable of distinguishing between hemp and pot.  Not even the Texas Department of Public Safety’s crime lab has the capability of making the distinction.

The two are close cousins, but the equipment and accreditation needed to tell the difference is lacking in the state and it could take months for Texas private and law enforcement-related labs to catch up.

Mass spectrometers needed to conduct the testing cost from $300,000 to $400,000.  That’s a big economic hit for a private lab, let alone a government lab that had not budgeted for it.  The lack of private labs will delay the roll out of legal, hemp-derived CBD oil products.  The lack of government labs is already impeding the prosecution of low-level marijuana cases.

Texas prosecutors are reluctant to take low level pot cases to trial without lab tests as defendants may claim seized “contraband” is in fact hemp.  TAB will continue to monitor developments and keep broadcasters informed.

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

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