MARIJUANA LAWS IN TEXAS & THE US: ONE BIG DISGRACEFUL MESS

Texas is infamous for their hardline anti-cannabis laws. In 2015, state legislators passed one of the toughest anti-marijuana laws in the country. Since January of 2016, at least 7 pharmacies carrying CBD were raided by the DPS (Texas Department of Public Safety). During the raids, CBD products sourced from hemp were confiscated. Recall that the 2014 Farm Bill federally legalizes CBD products sourced from hemp with under .3% of THC. Following the investigation, DPS General Counsel Phillip Adkins issued this statement:

Given certain ambiguities regarding the status of CBD under the Texas Controlled Substances Act (CSA), the department, after consulting with prosecutors, does not intend to pursue enforcement action based on the tested substance. This discretionary enforcement decision does not constitute a general opinion about the legality of any product.

So after raiding pharmacies carrying life-saving CBD products, law enforcement effectively throws up their hands and say “oops, our mistake.” This comes after the incredible PR damage and fear-struck perception the residents of Texas now have regarding CBD, which is among the most effective medicines for ailments like epilepsy, seizures, dementia, anxiety, and depression. Sheila Hemphill of the Texas Hemp Industries Association has this to say on the subject:

Since January of 2016, we are aware of seven known conflicts with law enforcement. Fortunately, none have resulted in a conviction. Ambiguity in the law related to the status of CBD under the TCSA (Texas Controlled Substances Act) has caused general confusion, unnecessary expenditures by law enforcement, legal expenses and untold stress to innocent consumers and businesses.

Under the the TCSA, marijuana is prohibited under the definition:

“Marihuana” means the plant Cannabis sativa L., whether growing or not, the seeds of that plant, and every compound, manufacture, salt, derivative, mixture, or preparation of that plant or its seeds. The term does not include:

 

(A) the resin extracted from a part of the plant or a compound, manufacture, salt, derivative, mixture, or preparation of the resin;

(B) the mature stalks of the plant or fiber produced from the stalks;

(C) oil or cake made from the seeds of the plant;

(D) a compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, fiber, oil, or cake; or

(E) the sterilized seeds of the plant that are incapable of beginning germination.

Hemp refers to strains of Cannabis sativa that have been bred specifically for fiber used for clothing and construction, oils and topical ointments, nutritional benefits and a wide and growing variety of other purposes that don’t involve intoxication. Therefore, hemp CBD is covered and prohibited under the above clause. The scientific difference between what we refer to as hemp and marijuana comes from the purpose for which the strain was bred.

CBD-based oils and related products are produced by first selecting the appropriate cannabis strain. In order to be federally legal, such a strain must result in a product which has less than .3% THC (although the most effective cannabis-based medicine should contain a higher percent of THC, according to many). After selecting the appropriate strain, there are a few different production routes on which a cultivator may embark:

  • Whole Plant Extracts:  CBD oil products produced from the entire plant; this method is popular because it is believed using the entire plant captures a broader spectrum of cannabinoids. Less likely to be legal.
  • CBD Isolates & “Pure CBD”: CBD extracted from non-GMO hemp using supercritical CO2, a process regarded as safe by the FDA. The extraction produces a botanical concentrate that includes the cannabinoids, fatty acids, and related plant material found naturally in hemp plants. More likely to be legal.

The legal definition of hemp can be sourced from The Marijuana Grower’s Handbook, first published in 1984. In it author and  marijuana cultivation guru Ed Rosenthal. states that hemp is: “is a plant that has low THC and perhaps has a higher level of CBD.”

As such, the law is incredibly vague. While hemp-sourced CBD under .3% THC is federally legal in all 50 states, Texas state law prohibits its production and sale. While federal law should theoretically trump state law according to the Supremacy Clause of the Constitution,  the 10th Amendment states that the federal government possesses only those powers delegated to it by the United States Constitution. All remaining powers are reserved for the states or the People. Therefore, federal law to regulate marijuana should be null and void as it is unconstitutional, and, by extension, state law regulating marijuana does not interfere with federal law.

In 2015 Texas passed the Texas Compassionate Use Program in a weak or cowardly attempt to appear activists and patients. The bill requires Texas’ DPS (Department of Public Safety) license at least 3 dispensaries to sell CBD products to patients diagnosed with intractable epilepsy by September 1, 2017. Licensing fees are incredibly expensive and, of course, the dispensaries will have to pass on those costs to patients.

According to CBD-Texas.com, the bill is fundamentally flawed since it requires doctors to prescribe medicine which is technically illegal at the federal level (that is, for anything over .3% THC not sourced from hemp):

[The bill] is not workable for Texas patients. It needs to be amended so that it does not require doctors to violate federal law by“prescribing” marijuana

it is clear from experience in other states that CBD-only legislation has failed to generate the high-CBD strains that epileptic patients desperately need

Doctors who wish to prescribe this medicine would have to register with the state, a practice that has already proven to be extremely unpopular with doctors in other states with similar restrictions

Any patient would have to go through the gambit of all FDA-Approved treatments including the invasive Vagus Nerve Stimulator, potentially fatal pharmaceuticals and even brain surgery in some cases before even qualifying for the cannabis oil.

Furthermore this bill restricts access to epileptic patients only.  This limits compassion to a select group of Texans and leaves out some of the most vulnerable like children suffering from cancer and veterans suffering from PTSD.

According to Heather Fazio, Texas political director for the Marijuana Policy Project:

Lawmakers missed several opportunities to amend the bill in ways that could have provided real relief to countless Texans. Not a single patient will be helped by this legislation.

While there were several aforementioned raids of pharmacies selling CBD products in Texas, none, to our knowledge, have resulted in any charges being pressed. According to Texas governor Greg Abott, patients seeking access to medical marijuana will not have any further success:

I remain convinced that Texas should not legalize marijuana nor should Texas open the door for conventional marijuana to be used for medical or medicinal purposes… As governor I will not allow it.

Sadly for the People of Texas, there are no term limits for governor — so seeking state-wide change is a lot cause for at least several years. It will take nothing short of large-scale campaign to push for a change. Thanks to weak and cowardly attempt by lawmakers, we find ourselves in a complicated vague web of legal arguments and theoretical arguments. But enough with the semantics — what about what’s actually happening on the ground?

 

CBD IN TEXAS: LET’S GET PRACTICAL

Considering the above, we can conclude that producing, selling, using or buying CBD in Texas is probably illegal. That being said, as a mere consumer, we don’t expect you to be prosecuted for buying or using CBD. However, because the laws are so confusing, vague, and nonsensical, one should exercise caution when buying CBD products in such unregulated markets. We recommend finding a company that produces organic, high quality CBD and finding out if they’ll deliver to Texas, as well as asking them about the associated risks.

What forces do you think is keeping Texas’ medical cannabis laws stubborn, nonsensical, vague, and so obviously unhelpful to patients? CBDquest is dedicated to pinpointing those halting progress, and exposing them. Join the Quest!