THC ban stalls out down the homestretch of Texas special legislative session

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After several months of fiery debate and tearful testimonies over the prospect of banning THC statewide, proposed measures to do so have stalled in the Texas House.

Senate Bill 6, which would have created a blanket ban on products containing any “detectable amount of any cannabinoid” other than cannabidiol and cannabigerol, better known as CBD and CBG, non-intoxicating components of cannabis, hasn’t been heard in a House committee after the Senate passed it Aug. 19. The House’s version of the bill hasn’t been heard in its chamber’s committee either.

Ten days might not be long for a bill to sit dormant during a regular legislative session, but with state leadership suggesting that the current special legislative session could wind down in the coming days, lawmakers would have to move fast on THC upon reconvening after Monday’s holiday.

Without further regulations or a ban being discussed by lawmakers in the House, the most likely scenario is that hemp-derived THC remains legal in Texas, but with more enforcement of current laws restricting the drug.

“It seems like a lot of people don’t want anything to do with it,” said Lukas Gilkey, chief executive of Hometown Hero, an Austin-based manufacturer of hemp-derived THC products. “It’s a hot potato.”

What does the status quo look like? 

Consumable THC products in Texas are mostly made from hemp-derived cannabinoids that were made legal federally and statewide in 2019. These products come in various forms, including smokable vapes and flower buds, oils and creams, baked goods, drinks, gummies, and candies. Under current law, most of those forms would remain legal if lawmakers don’t take any action to further regulate or ban THC. However, Senate Bill 2024, which went into effect Sept. 1, bans the sale of vape pens that contain THC and other cannabinoids, as well as vape pens made in China, that contain kratom, mushrooms, kava and other drugs. The law doesn't ban the possession.

Texas law, however, says the products may not contain more than 0.3% concentration of tetrahydrocannabinol, or THC, the intoxicating part of the cannabis plant that comes in forms known as delta-8, delta-9, and THCA. There has been little enforcement of this because of the burden it places on the criminal justice system to test these products and cite retailers who might have packages mislabeled. There are also loose and inconsistent testing requirements under state law.

However, even if the laws don’t change, enforcement of these laws could pick up. Gilkey has recently accused Texas Department of State Health Services officials of conducting retaliatory raids of hemp manufacturers.

The state agency, which inspects manufacturers for sanitary conditions and reviews records that confirm hemp has less than 0.3% delta-9 THC, clarified that staff doesn’t perform raids on businesses.

“DSHS conducts inspections randomly or ‘for cause’ due to information indicating a licensee may not be in compliance (e.g. complaints received),” agency spokesperson Lara Anton said in an emailed statement. “Due to limited resources and the rapid influx of licenses, our current target inspection frequency is once every five years.”

Under current law, there is no age limit to purchase consumable hemp-derived THC products and no limit on the number of retailers who can sell these products.

"Stay vigilant” until sine die

This is the third attempt this year by lawmakers in the upper chamber to eliminate the majority of hemp products statewide, including those that are legal under the federal definition.

The movement to ban hemp-derived THC products was spearheaded by Lt. Gov. Dan Patrick and Sen. Charles Perry, R-Lubbock, who, along with other lawmakers, deemed these items too dangerous for the general public since it was getting into the hands of children.

The ban almost passed during the regular session. However, Gov. Greg Abbott vetoed the bill, instead calling for regulations and making it a priority of both special sessions.

Abbott, in his veto, urged lawmakers to regulate hemp similarly to liquor, by prohibiting sales near places frequented by children, and banning sales to anyone under the age of 21, with strict penalties for any retailer that fails to comply. The hemp industry has primarily been amenable to these proposed restrictions.

The veto came after immense pushback from hemp supporters, including veterans and chronically ill people, who said hemp has been a cheaper and more accessible alternative to the medical marijuana program. Patrick, who was a vocal supporter of a THC ban, lambasted the veto as an attempt to legalize adult-use cannabis.

“Senate Bill 6 has been a top legislative priority because the Texas Senate refuses to allow bad actors to use loopholes in agriculture law to flood our communities with potent, intoxicating products disguised as harmless treats,” said Patrick after the upper chamber passed SB 6. “Texans expect action — and the Senate will continue delivering until SB 6 becomes law.”

The Texas Tribune has reached out to Patrick’s office for a comment.

In advocating for a ban, Perry pushed against Abbott’s suggestion to regulate hemp, saying during legislative hearings that law enforcement doesn’t have the manpower to regulate the alcohol industry, let alone the THC market. He also doesn't believe the hemp market actually wants to be regulated.

Hemp advocates, such as Heather Fazio with the Texas Cannabis Policy Center, are still closely watching discussions in the Legislature and hesitate to declare a win until both chambers gavel out.

“Everyone should stay vigilant. The session is not over, and because it is a special session, they don’t have to follow the same rules as during a regular session, so we’re just staying aware until this whole thing is over,” said Cynthia Cabrera, chief strategy officer for Hometown Hero.

Cabrera said the past few attempts to ban overall access to THC are the perfect example of government overreach and why Texans need to be engaged with their local government.

However, she said the industry is still ready for regulations, not a ban, if or when they come.

“If your concern is about access by minors, then pass an age bill. It's a very simple thing to do,” she said. “If you're concerned about synthetics, well then don’t be, because synthetics are already illegal and have been since 2011. It would be nice to get past all the rhetoric and really focus on a public safety, high-quality, consumer-oriented approach."

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