Texas lawmaker introduces bill to legalize hemp amid concerns over CBD possession

Editor's note: This article was updated Feb 7 with comments from the Texas Department of State Health Services.

A lawmaker in Texas on Monday introduced a bill that would establish a hemp program following a news report that local authorities have cracked down on the possession of cannabidiol (CBD ) oil.

Rep. Tracy King, a Democrat representing District 80, introduced House Bill 1325 (“Hemp Farming Act”) the same day the nonprofit U.S. Hemp Roundtable urged a county prosecutor in Texas to “abandon your efforts to arrest, or otherwise prosecute as a crime, the purchase, possession or sale of hemp-derived CBD.”

A man was arrested during a routine traffic stop after he advised an officer that he had CBD oil in his car, NBC 5 – KXAS, a television channel in Fort Worth, Texas, reported Jan. 31. The man was initially charged with a felony, but it was subsequently downgraded to a misdemeanor; and the charge was ultimately dismissed after he completed a first-time offender program, the report disclosed.

Larry Moore, a criminal prosecutor in Tarrant County, told the TV station that it is a felony to possess CBD with any trace amounts of tetrahydrocannabinol (THC)—the psychoactive compound in marijuana—and it’s a misdemeanor to have THC-free CBD.

“Texas law is undeniably unclear about the status of hemp-derived CBD,” Jonathan Miller, general counsel to the U.S. Hemp Roundtable, a coalition of hemp companies, wrote this week in a letter to Tarrant County Criminal District Attorney Sharen Wilson. “There is no explicit prohibition for the retail sale of such products, nor admittedly is there any express permission for its sale.”

CBD oil is only legal in Texas for epilepsy patients who have a doctor’s prescription, according to Wilson. A 2017 action by the Commissioner of the Texas Department of State Health Services, John Hellerstedt, M.D., “criminalized any possession of an ‘extract’ from a plant of the genus Cannabis, and it is the basis for the current illegal status of non-prescribed CBD oil,” Wilson said in a Feb. 5 statement.

Lara Anton, a press officer with the Texas Department of State Health Services, said her agency has oversight of cosmetics, drug and food distributors, manufacturers and retailers, including those that may use CBD as an ingredient.

"CBD is not authorized by the FDA for use in any food, dietary supplement or cosmetic product," she said in an email. "During routine inspection or complaint investigations, DSHS, within its statutory authority, may detain products that are labeled as or contain CBD with unproven claims to prevent, diagnose, treat and/or cure a health or medical condition or that are being produced or handled in a manner that creates a health hazard for people who may use it."

She added, "Because of the FDA-established prescription drug status of CBD, it may not be used in dietary supplements, and would also be detained in this situation."

Texas has not legalized hemp, and “Hellerstedt … must remove marijuana extract from the controlled substances schedule” to legalize the possession and sale of hemp products, Wilson said.

The district attorney nonetheless concluded, “We have not spent and do not expect to spend significant resources on cases involving CBD oil.”

In adding marijuana extract to Schedule 1 of the state’s Controlled Substances Act (CSA), Texas followed a move in December 2016 by the Drug Enforcement Administration. DEA adopted a drug code for “marihuana extract,” triggering a lawsuit from representatives of the hemp industry and causing confusion over the legality of hemp-derived CBD.

Federal law has radically changed since then. In December, President Donald Trump signed the 2018 Farm Bill, which removed hemp from the federal CSA and granted states and Indian tribes the authority to primarily regulate the crop. Legal experts said the Farm Bill made it clear that DEA no longer has any jurisdiction over hemp, including CBD.

HB 1325 “would allow Texas to join 41 other states in hemp cultivation, bring the state into full compliance with the 2018 Farm Bill and clarify beyond any doubt that hemp products such as CBD could be sold at retail,” the U.S. Hemp Roundtable stated on its website.