Texas Legislature to Review Legal Hemp Products in Upcoming Session

posted on 10.29.2024

Lawmakers in the 89th Texas Legislature will be asked to clarify existing law to potentially ban the sale of Delta-8 and Delta-9 hemp products in Texas.

Some legislative leaders say the sale of such products has gone far beyond what was envisioned in a 2019 Texas law that created a legal hemp industry here.

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.”  

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 popularity of such products apparently now poses an existential threat to the handful of legal Texas medical marijuana providers.

A 2015 Texas law created the highly regulated “compassionate use” cannabis program which allows the sale, by prescription only, of certain low-level THC cannabis for limited medical conditions.

Later amendments approved by the Legislature expanded its use to include other medical conditions. 

Meanwhile, largely unregulated hemp products like Delta-8 and Delta-9 are in high demand because no prescription is required and they are easily accessible.  

The issue is already under study by a Senate interim committee at the behest of Texas Lt. Gov. Dan Patrick, R-Houston.

Hemp product advocates say the economic impact of closing off the sale of Delta-8 and Delta-9 products would be substantial.

One industry advocate said in a recent Texas Tribune interview that “any bans or excessive legislation of hemp-derived cannabinoids, as suggested by Lt. Gov. Dan Patrick and others, will negatively impact an industry that has an $8 billion economic impact, pays $1.6 billion in annual wages, and supports more than 50,000 workers.” 

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

The case is pending, so Delta-8 products are legal to buy and sell, for now.

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

While the sale and advertising of certain types of CBD-related and other cannabis products is currently legal, the regulations that allow it are quite specific. 

Stations accepting such advertising do so at their own risk and therefore must perform 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 TAB’s CBD Advertisement 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 the 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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