During the 2019 Texas legislative session state lawmakers took a step forward in establishing a hemp program despite strong and ongoing concerns by policymakers that they were legalizing marijuana. Their concerns lie with the potential for the program to inadvertently allow the legal sale of large psychoactive amounts of THC (tetrahydrocannabinol), the component found in marijuana which produces a “high.” This prompted legislators to define hemp as the plant Cannabis sativa L. with a Delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis, which is consistent with the federal definition of hemp.
Since 2019, numerous businesses have come into existence to sell hemp derived products such as cannabidiol (CBD) supplements. During that time another product similar to Delta-9 came to market called Delta-8, both of which are considered tetrahydrocannabinol. Marketed as a product with therapeutic effects and a legal alternative to Delta-9, state lawmakers took notice of the new product, one which they had not intended to authorize under the state’s hemp program. Relevant Watch: HB 3948 hearing Texas Senate Committee on Water, Agriculture, & Rural Affairs
Delta-8 occurs naturally within the cannabis plant in small amounts, making it non-viable for commercial quantities. However, CBD can be converted into Delta-8, which raises the question “is Delta-8 a synthetically derived cannabinoid?” Synthetically derived cannabinoids, regardless of whether they come from hemp or marijuana, are illegal.
In August 2020, the Drug Enforcement Administration issued a ruling adding language excluding tetrahydrocannabinols which fall under the definition of hemp from the list of controlled substances. However, the Texas Department of State Health Services (DSHS) objected to this modification, declining to adopt it for the state’s controlled substances list, and testified as a resource witness regarding the legality of Delta-8, testifying “Delta-8 still remains on the Schedule 1 drug Schedule” in Texas. It raises the question of whether Delta-8 is already illegal in Texas. (Watch Testimony) (Read DSHS decision)
During the 2021 legislative session lawmakers sought to ensure that regardless of if it meets the definition of being synthetically derived or a controlled substance, Delta-8 is regulated exactly as Delta-9. Their attempt resulted in adding an amendment to HB 2593 on the floor of the Texas Senate, which had it been enacted, would require that all products going forward must contain no more than 0.3 percent tetrahydrocannabinol by dry weight. This amendment was ultimately discarded during conference committee between the House and Senate, and was not enacted into law.
What does this mean?
This is concerning since hundreds if not thousands of Texas businesses, who have survived the economic impacts of the pandemic, will be affected, as well as the many customers who have benefited from these products. Due to the legal ambiguity of Delta-8, it is imperative that we focus on a regulated cannabis market. Legality based on the chemical makeup of a plant is expensive, ineffective, and a failed policy. It is important that we create a regulated market which:
A legal and regulated cannabis market is the best way to ensure consumer protection and quality products, restrict access to those under the age of 21, save taxpayer money, and generate revenue.
By: Stephen Carter & Jax Finkel