On September 19, Texas State Senator Charles Perry, R-Lubbock, in response to Governor Abbot's Executive Order "to protect children from hemp products," formally requested in a letter to the Texas Department of Agriculture (TDA) and in another letter to the Texas Department of State Health Services (DSHS) to update Texas' hemp rules to comply with federal regulations.
Sen. Perry's call Perry's call comes after he unsuccessfully tried to ban all consumable hemp products with trace amounts of THC or other intoxicating cannabinoids in the special sessions, an effort that deviated from Governor Abbott's request to regulate the state industry.
Sen. Perry requested TDA engage in emergency rulemaking to ensure (1) that the Texas Hemp Program rules are at a minimum, as stringent as those required by the USDA of every state plan in the United States, especially regarding Total THC, and (2) that bad actors in the State of Texas are clearly prohibited from exploiting purported "loopholes" in current rules to circumvent the Texas Controlled Substances Act. Texas law should be crystal clear – cannabis flower that exceeds 0.3% Total THC is Marijuana."
Per Texas State Senator Perry, this lack of clarity surrounding which products are classified as either hemp or marijuana has created legal "loopholes" which have allowed retail stores to "sell marijuana masquerading as hemp". Current Texas law, though, is not crystal clear, and some have argued it only requires testing for delta-9 THC.
Specifically, Sen. Perry, requested Texas's hemp regulations clarify that hemp must be tested for total THC using the following formula to "align with federal regulations: Total THC = (THCa×0.877) + delta-9 THC."
Under federal guidelines from the U.S. Department of Agriculture (USDA) in order for cannabis to be considered hemp: it must be grown by a licensed hemp grower in compliance with either the USDA or state hemp rules that the USDA approved; and meet the pre-harvest standard of 0.3% THC. However, once the hemp passes the pre-harvest THC testing, federal law does not require additional testing on finished goods. Notwithstanding the latter, states are permitted to adopt more stringent regulations governing the cultivation, processing, manufacture, marketing distribution and sale of hemp products.
As previously discussed, the Texas Alcoholic Beverage Commission issued emergency regulations to prohibit those under 21 years old from accessing consumable hemp products (CHPs) that will "negatively impact the minors' health, which in turn negatively impacts the general welfare and public safety." Retailers are prohibited from selling, offering for sale, serving or delivering CHPs to a person younger than 21 years of age and must check the identification of any person wanting to purchase CHPs to confirm their age. The emergency rules are effective immediately and for up to 180 days; however, ABC will not begin enforcing the rules until Oct. 1, 2025.
We will continue to monitor the regulatory impact and enforcement actions taken in connection with the recent cannabinoid vape ban pursuant to Senate Bill 2024. Likewise, we will continue to keep you posted regarding Governor Abott's newly proposed executive order and the opportunity to comment on the proposed regulations from TDA and DSHS., as well as those from ABC.
Buchanan's experienced and dedicated Cannabis Practice Group and Government Relations & Public Policy Group will continue to be actively involved with legislators as they grapple with the changing landscape of cannabis regulations at both the state and federal levels.
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