Texas Legislature on verge of completely banning THC products after key House vote

Sign up for The Brief, The Texas Tribune’s daily newsletter that keeps readers up to speed on the most essential Texas news.

---

The Texas House late Wednesday gave initial approval to a bill that would ban all products containing tetrahydrocannabinol, or THC, likely spelling the end for the state’s short-lived hemp industry.

Under the legislation, which is nearing the governor’s desk for approval, adults would face up to a year in jail for possessing hemp products with any amount of THC — a stricter penalty than what is on the books for possessing up to 2 ounces of marijuana.

The bill’s expected passage portends a minor earthquake for the state’s economy, effectively shuttering a field that, by one estimate, accounts for roughly 50,000 jobs and generates $8 billion in tax revenue annually.

THC products, now a ubiquitous presence at gas stations, convenience stores and thousands of other retailers across Texas, are now poised to be taken off the shelves. The about-face comes six years after the Legislature inadvertently touched off a massive boom in hemp-based products when lawmakers, intending to boost Texas agriculture, authorized the sale of consumable hemp.

Though that 2019 law does not allow products to contain more than trace amounts of delta-9 THC, it did not establish that same threshold for other hemp derivatives. Critics say the hemp industry has exploited that loophole to the tune of more than 8,000 retailers now selling THC-laced edibles, drinks, vapes and flower buds.

The vote ended months of suspense over how the House would handle competing calls to ban or regulate THC, the psychoactive element in marijuana.

This session, Lt. Gov. Dan Patrick, who oversees the Senate, has led the charge to eradicate the industry, which he accuses of preying on susceptible minors by setting up stores near schools and marketing products to children. The Senate passed legislation in March to ban all THC products, and the Republican leader threatened to force an overtime session of the Legislature if the House did not get on board.

“I’ve been here for 17 years at the Texas Capitol — 10 years as your lieutenant governor. I’ve never been more passionate about anything,” Patrick said in a video posted on social media Monday evening. “I’m not gonna leave Austin until we get this done.”

Hemp industry leaders and advocates say criticism of THC products and retailers is overblown. Shortly after Wednesday's House vote, Lukas Gilkey, chief executive of Hometown Hero, a manufacturer of hemp-derived products, said industry leaders would immediately begin preparing a lawsuit to challenge the expected ban.

Gilkey said the legal fight would be waged by the Texas Hemp Business Council, a trade group that released a statement late Wednesday blasting the House for ignoring "the voices of small businesses, farmers, veterans and consumers across the state who rely on hemp-derived products for their livelihoods and well-being."

In lieu of an outright ban, hemp manufacturers and retailers had urged House lawmakers to adopt stricter oversight and licensing requirements, including those found in the previous House draft of the legislation, which would have preserved some types of THC products.

A majority of House lawmakers did away with that approach on Tuesday, voting 86-53 to back a floor amendment from Rep. Tom Oliverson, R-Cypress, that overhauled the bill by essentially restoring the version approved by the Senate two months ago. It was a major blow for the hemp industry, which had leaned on the House as the bulwark against the Senate’s unwavering bid to outlaw THC. Several Democrats joined with the House's Republican majority in support of the ban.

With Oliverson's amendment in place, the bill itself passed by an even wider 95-44 margin.

The measure, Senate Bill 3, is expected to receive a final, largely ceremonial vote on Thursday, the last step before it will head back to the Senate. Though Oliverson’s floor substitute largely aligns the bill with the Senate draft, it added a handful of changes that will require the Senate’s signoff before the bill can head to Gov. Greg Abbott’s desk.

Abbott has declined to weigh in on the issue this session, deferring to lawmakers to decide on their preferred approach. An Abbott spokesperson declined to reveal the governor’s plans for signing the THC bill, saying only that he “will thoughtfully review any legislation sent to his desk.”

Laying out his case for a full ban on Wednesday, Oliverson said the 6-year-old law that gave rise to Texas’ hemp industry was “never intended to legalize intoxicating THC products.”

“What began in 2019 as a bipartisan effort to support Texas agriculture has since been hijacked by a cottage industry of unregulated THC sellers,” Oliverson said.

The Houston-area Republican argued it is difficult and perhaps impossible for retailers to ensure their mass-produced THC products contain consistent amounts of the hemp derivative — hitting on another criticism from some law enforcement officials who say they have uncovered products on retail shelves with dangerous concentrations of THC.

Rep. Gene Wu, D-Houston and chair of the House Democratic Caucus, framed the vote as a move “backwards in time” that defied a trend seen in other states to expand access to recreational marijuana or THC.

“We're still rehashing parts of ‘Reefer Madness’ from the ‘50s and ‘60s,” Wu said. “We thought that we've gotten past this, that we've grown, that we've gotten smarter. … But here we are, back again.”

He added that the “overwhelming majority” of veterans’ groups are “aggressively supporting legalization” and want regulations rather than a ban — an attitude, Wu argued, that reflects the broader view of Texas residents.

“Texans as a whole do not want something that they've had access to for the last five years, something that they've enjoyed recreationally, that has helped them medically, that has made their lives better,” he said.

Like in the Senate version, Oliverson’s floor substitute would continue to allow the non-intoxicating, non-psychoactive cannabinoids known as CBD and CBG. And it would place more restrictions on those products, requiring them to be packaged in ways that are “tamper-evident,” “child-resistant” and resealable “in a manner that allows the child-resistant mechanism to remain intact.”

The bill also establishes a range of criminal offenses. Anyone found to have manufactured, delivered or possessed a THC product “with intent to deliver” could face a third-degree felony charge, punishable by two to 10 years in prison. The same penalty would apply for manufacturing CBD products without a license or selling them without registering with state officials.

Under the bill, possessing a consumable hemp product with any amount of THC would be punishable by up to a year in jail, double the existing penalty for possessing up to 2 ounces of marijuana.

Selling CBD products to minors or marketing the products in ways that are “attractive to children” would also carry up to a year of jail time.

Oliverson and most other Republicans agreed to a proposal from Rep. Joe Moody, D-El Paso, to amend the possession punishment for most minors down to a Class C misdemeanor — punishable by a fine of up to $500 and no jail time — and allow them to expunge their records.

Some lawmakers who opposed the ban contended it would merely drive consumers to seek out THC products on the unregulated black market, where they would also find access to more potent and dangerous drugs.

Rep. Ken King, a Republican from Canadian who carried the THC bill in the House, argued for a version that would have sharply tightened regulations on the hemp industry and restricted which products are allowed to contain THC. Doing away with THC products altogether would not keep them out of Texans’ hands, he contended, comparing the approach to the federal ban on alcohol sales and manufacturing in the 1920s and 1930s, which gave rise to bootlegging and organized crime.

“These products are federally legal and can be mailed directly to the consumer,” King said. “Even if Texas passes a total ban, a complete ban would maintain the status quo just putting more of it on the streets, unregulated.”

Supporters of the ban pointed to the Legislature’s planned expansion of its limited medical marijuana program, which is being considered in separate legislation that cleared the House last week. The version approved by the lower chamber would significantly expand the list of qualifying conditions and allow patients to use smokable marijuana products, which are not offered by the existing program.

Midway through Wednesday night's floor debate, Patrick took to social media to offer his full-throated support for expanding the medical program — known as the Texas Compassionate Use Program — by allowing for more licensed medical marijuana dispensers and letting providers operate satellite storage facilities designed to make it easier for patients to access their prescriptions.

It’s unclear how much of that expansion will make it into the final version. Sen. Charles Perry, the Lubbock Republican spearheading the Senate’s THC and medical marijuana efforts, said Monday that he plans to introduce a new draft of the medical marijuana bill and suggested it would scale back parts of the House version, which he said contained unspecified changes that “could open up the door for unintended consequences.”

Some of the strongest opposition to the all-out ban has come from those who use THC products for medical reasons. Patients and doctors say the THC in cannabis can be used effectively to combat pain, depression, anxiety, appetite problems and nausea.

Even with an expanded medical program, some users have said they would strongly prefer to continue buying products over the counter, because doing so is cheaper, more accessible and does not require a visit to a medical professional for pre-approval. Oliverson, an anesthesiologist, framed this as an unfortunate trend — and a policy failure.

“In pain management, self-medication is the first step in treatment failure, and the unregulated hemp market is a hazard to these Texas patients,” Oliverson said. “THC preparations acquired at the local corner store are dangerous and can lead to overdose or psychosis.”

Hemp advocates and experts say the explanation is often more complicated for the mental health scares cited by THC critics. Some people may be predisposed to developing disorders such as schizophrenia and should not be using cannabis, those experts say, while other problems could have come from THC products obtained on the black market or if chemicals — known as residual solvents — are not fully removed when the cannabinoid is being extracted from the plant material.

---

First round of TribFest speakers announced! Pulitzer Prize-winning columnist Maureen Dowd; U.S. Rep. Tony Gonzales, R-San Antonio; Fort Worth Mayor Mattie Parker; U.S. Sen. Adam Schiff, D-California; and U.S. Rep. Jasmine Crockett, D-Dallas are taking the stage Nov. 13–15 in Austin. Get your tickets today!