Policy Update: Delta-8 THC in Texas

TL:DR: Legislators made no change to Texas state law re: Delta-8 during the 2021 legislative session, but legality remains unclear.

Update on Efforts to Ban Delta-9 THC in Texas

The deadline has passed for the HB 3948 Conference Committee to submit their report. The report was not filed in time! Rep. Tracy King’s hemp bill fails to advance and no changes will be made to the hemp program.

This is disappointing for farmers and the hemp industry for a number of reasons, but…

Remarkably, this bill failing and the Delta-8 amendment being struck from Rep. Moody’s HB 2593, it has become clear that no changes will be made to the legal status of Delta-8 THC. 

This is good, but the conversation on Delta-8 is about to get very interesting…

Background on Delta-8 THC

The federal legalization of hemp, CBD, and all cannabinoids with trace amounts (.3%) Delta-9 THC has led to an explosion of interest in legal cannabis. With this new freedom, entrepreneurs in the hemp industry have driven molecular advancements to create Delta-8 THC from hemp-derived CBD.

Delta-8 is a naturally occurring cannabinoid, but it doesn’t usually exist in large amounts. Through the isomerization process, chemists can change the molecular structure of CBD, turning it into Delta-8. While it is chemically similar to Delta-9, it is distinctly different and legal under federal law.

State Law vs Federal Law

This is where it gets complicated…
The current legality of Delta-8 THC products in Texas was called into question when Stephen Pahl from the Department of State Health Services offered testimony during the hemp hearing. He testified that DSHS considers Delta-8 products ILLEGAL under current state law.

Watch Stephen Pahl’s Testimony (DSHS)

A decision published by the Commissioner John Hellerstedt, M.D. in January announces his decision to reject the federal government’s new definitions of THC and “Marijuana Extracts” as amended when they legalized hemp.

When the federal government changes their Controlled Substances Act (CSA), as it did when hemp was legalized, states have the option to adopt the new provisions administratively (through the Commissioner). The states can also reject the new policies, which is what Commissioner Hellerstedt decided to do in September 2020.

According to the commissioner, there was a hearing on October 6, 2020, but no public testimony offered or written comments submitted. Interestingly, his decision was initiated about the same time DSHS adopted the smokable hemp ban, but no one in the hemp industry knew about the change.

The Bottom Line

Commissioner Hellerstedt and DSHS are asserting that cannabis and cannabis products with more than .3% total THC are already illegal in Texas, even if the THC is Delta-8 and derived from hemp.

It’s unclear how the State of Texas will proceed.

Regulation is a Better Approach

How could the State of Texas move forward with enforcing a ban these widely available (and enjoyed) products? Will DSHS be in charge of enforcing these criminal penalties? Will DPS be tasked with this undesirable mission? Are they going to go in and raid every hemp shop in the state? I don’t think this cat is going back in the bag.

SOLUTION: End prohibition. Institute reasonable regulation.

Let’s make sure consumers are educated about driving under the influence, which would remain illegal, and age requirements to protect children. Regulations like this are in place for alcohol and they should be put in place for THC.

End prohibition. Legalize responsible adult use.

A Friendly Reminder

Consumer responsibility is critical in this emerging market. I urge caution and diligence when researching the company you’re buying from.

Driving under the influence is dangerous. Never drive or operate heavy machinery while impaired.

While there are no known human deaths from cannabis overdose, please keep cannabis products stored safely and away from pets and children. This is your responsibility. Please take it seriously.

When consuming cannabis products, especially infused edibles, always “Start Low and Go Slow.”

Legislative Update: Medical Cannabis (1535) and Hemp (HB 3948)

The 87th Texas Legislature is in session through Monday. We are in the final stretch of a hard-fought mission to reform marijuana laws!

Medical Cannabis – HB 1535

Rep. Stephanie Klick has accepted the Senate amendments to HB 1535 and the watered down medical cannabis bill is on its way to Gov. Abbott’s desk. It’s a bittersweet moment for us. My quote in the Texas Tribune sums it up:

Heather Fazio, director of Texans for Responsible Marijuana Policy, lamented that the proposal in its final form was “unreasonably restrictive,” despite wide bipartisan support for legalizing cannabis.

“While we are glad to see the Compassionate Use Program being expanded, it’s disappointing to see Texas inching forward while other states, like Alabama for example, are moving forward with real medical cannabis programs,” Fazio said. “It’s doing so little and we wish [lawmakers] were doing more.”

Hemp – HB 3948

Rep. Tracy King’s HB 3948 creates an important licensure process for research, cleans up some language for Texas farmers, allows hemp feed, and more. Led by Lt. Gov. Dan Patric and Sen. Charles Perry, the Senate added an amendment with language addressing “synthetics,” which strictly limits Delta-8 products. A conference committee has been established for negotiations. 

They’ll meet sometime soon and their report must be filed by TONIGHT at midnight. Then the House and Senate must vote on and agree to the conference committee report by tomorrow at midnight. We’ll send updates as they are available.

Because we oppose prohibition, I encourage you to contact your legislators about this bill and ask them to remove the Delta-8 languageRegulating Delta-8 and all THC is a much better approach.

(Update HB 2593 Conference Committee striped the Delta-8 language! Their report has been filed in the House and Senate. More info here.)

End of Session Party! (Monday in Austin)

However the chips may fall, we’re proud of the work done by advocates across the state!


Join us in Austin on Monday for an End of Session Party!

Admission is FREE. We’ll have live music, food, and we’re raffling off two pairs of tickets to see Willie Nelson LIVE in Austin this summer!

Update: HB 1535 Passed the Senate Last Night (Good/Bad News)

Last night the Texas Senate unanimously approved HB 1535, which expands access to the Compassionate Use Program to include all cancer patients and those with PTSD. The bill also raises the cap on THC to 1% and establishes Institutional Review Boards to facilitate research and track the effectiveness of low-THC cannabis for participating patients.

While this is a step forward, it’s disappointing that the Texas Legislature continues to inch ahead while other states (most recently, Alabama!) take meaningful action to allow safe and legal access to medical cannabis. Texas patients deserve better, so we’ll keep fighting!

Learn more about this legislation and ask lawmakers to reinstate chronic pain as a qualifying condition!

Penalty Reduction for Cannabis Concentrates/Infused Products:
Rep. Moody’s HB 2593 is pending approval in the House after passing the Senate. Negotiations are being made to remove the delta-8 ban from the bill (if possible). More info here.

As the end of session draws near, many of us are left with a bitter sweet taste in our mouths. Don’t lose heart! Against all odds, advocates have worked to educate lawmakers and push for meaningful changes to our state law. In honor of all their hard work and perseverance, we are hosting an End of Session Party in Austin (May 31)I hope you’ll join us!

Legislative Update | Texas Marijuana Policy (May 25, 2021)

As we approach the end of the legislative session, we have seen the power of the grassroots. Thank you for your contributions to our movement for reform!

Two bills are nearing the finish line. Here’s the latest:

House Bill 1535 (expanding compassionate use) was finally given a hearing yesterday afternoon. It was amended and passed unanimously. The bill was amended to allow access for all patients with cancer and PTSD, but not chronic pain. Notably, they removed the provision that would have empowered the Department of State Health Services to add new qualifying conditions. Disappointingly, the committee also reduced the cap on THC from 5% to 1% by weight. Learn more and take action here.

HB 1535 is on today’s Intent Calendar in the Senate. This does not necessarily mean it’ll be voted on today — but it could!


House Bill 2593 (reducing penalties for THC concentrates/infused products) was passed by the House with bipartisan support. Controversially, the Senate added a provision that establishes a definition for “total THC” to include isomers like delta- 8 THC. If passed, products high in delta-8 THC would be subject to the same penalties as delta-9 THC.

Because it was amended, the House has two options: 1) accept changes or 2) establish a conference committee to reconcile differences (led by Rep. Moody). More info here.

We are taking the good with the bad and working to improve both of these bills as they make their way through the process. Please stay tuned to our emails for updates and action alerts!

Invitation: End of Session Party | Monday, May 31 at 4:20pm in Austin

HISTORIC: HB 2593 Approved by the Senate! (Penalty reduction for cannabis concentrates)

The Texas Senate just approved HB 2593, a bill that significantly reduces penalties for cannabis concentrates and infused products! This is an historic moment in Texas!

Authored by Rep. Joe Moody and sponsored by Senator Nathan Johnson, HB 2593 has now that it has been approved by the Senate and, since it was amended, must be accepted by the House before being sent to the Governor.

The amendment made to the bill includes all ALL THC in the definition, so delta-8 THC products would be subject to the same penalties as delta-9 THC. The legality of delta-8 THC products was already in question after testimony from the Department of State Health Services during the hemp hearing. Here’s a memo published by the Commissioner John Hellerstedt, M.D. in January. More info from Texas NORML here.

Policy Overview:

  • Currently, any amount of concentrated THC or cannabis infused product carries an automatic FELONY charge, compounding the already significant collateral consequences of a marijuana conviction.
  • Under HB 2593, Possession of two ounces or less of THC concentrate or cannabis infused products would be a Class B Misdemeanor (same as current penalties for cannabis flower).
  • THC concentrates include oils used in vape pens, tinctures, or infused lotions. Infused edible products like baked goods or lozenges are also included in this penalty group.

This wouldn’t be possible without the tremendous support of our grassroots movement. Great work, everyone!

Texas: HB 2593 – Penalty Reduction for Cannabis Concentrates


Final Status: After passing with bipartisan support in the House and Senate, a confernece committee was established to reconcile differences in the bill. Namely, they had to remove a hostile amendment that was hastily added in the Senate. The amendment was removed, the HB 2593 Conference Committee Report (PDF) was signed by all conferees, and the report was approved by the Texas House. However, Lt. Gov. Dan Patrick refused to allow a vote on the report, effectively killing HB 2593.

This issue is too important to give up, so lawmakers and state leadership can expect us back again in 2023 when the legislature convenes again.

Background

Currently, any amount of concentrated THC or cannabis infused product carries an automatic FELONY charge, compounding the already significant collateral consequences of a marijuana conviction.

As passed by the House and Senate State Affairs Committee, HB 2593 garnered broad support, including favorable testimony from Staley Heatley, District Attorney in Vernon, Texas, and numerous advocacy organizations. 

Introduced by Speaker Pro Tem Joe Moody and Sponsored by Sen. Nathan Johnson, HB 2593 (as filed) would reduce the penalty for possession of cannabis concentrates and infused products (<2oz.) from a felony to a Class B Misdemeanor (same as current penalties for marijuana flower). This bill would cover cannabis oils used in vape pens, tinctures, or infused lotions. Edible products like baked goods or lozenges are also included in this penalty group.

Senate Amendment: Banning Hemp Derived Delta-8 THC

UPDATE: This amendment has been removed from HB 2593!
(I’ve left this information on the page for historical reference.)

Driven by the Lt. Governor and Sen. Charles Perry, we were blindsided by an amendment on the Senate floor that seeks to ban Delta-8 products in Texas. The amendment sets the total THC for hemp and its products at 0.3 percent, including hemp derived Delta-8.

Hastily added to the bill, the amendment was not germane and had to be removed by the HB 2593 Conference Committee.

The legality of delta-8 THC products has been called into question after testimony from the Department of State Health Services during the hemp hearing. Here’s a memo published by the Commissioner John Hellerstedt, M.D. in January. More information here.

Here’s a video of the Senate debate (and delta-8 amendment) for HB 2593. And for reference, here’s a video of the Senate committee hearing on the hemp bill (HB 3948), which largely focuses on Delta-8.


In advance of a hearing by the Senate State Affairs Committee on May 17th, Rep. Moody published the following message to advocates:

“I’m excited for the historic progress this movement has led to!”

“I really appreciate all of your support. Thank you for trusting me to shepherd this important legislation. The finish line is in sight.”

Please consider making a donation toward our work to reform marijuana laws in Texas. Thank you for your support!

Update: Penalty Reduction and Hemp Hearings Scheduled in the Senate!

With 15 days left in the session, several bills are still making their way through the process!

MONDAY: HB 2593, authored by Speaker Pro Tempore Joe Moody, would reduce possession of two ounces or less of THC concentrate or cannabis infused products from a felony to a Class B Misdemeanor. THC concentrates include oils used in vape pens, tinctures, or infused lotions. Infused edible products like baked goods or lozenges are also included in this penalty group.  Arrests will be up to officer discretion. This bill is scheduled for a hearing on Monday, May 17th in the Senate State Affairs Committee. 

Take Action: 

TUESDAY: HB 3948, authored by Representative Tracy King, would establish a hemp research program, address consumable hemp products and cleans up some language in the statute. This bill is scheduled for a hearing on Tuesday, May 18th in the Senate Water, Agriculture & Rural Affairs Committee. 

Last week, the deadline for bills to make it out of the House passed. This means that no more bills can advance from that chamber. Here is where we stand in the Senate:

Update: Texas Marijuana Policy | April 30, 2021

There are 30 days left in the 2021 legislative session and marijuana bills are on the move!

Three bills have been approved by the Texas House, including proposals to reduce penalties for possession (HB 2593, HB 441) and expand access to medical cannabis (HB 1535).

One very good bill has passed the House and Senate! HB 567 adds a new limitation on removals under Family Code, Section 262.116, that testing positive for marijuana use alone is not sufficient for removing a child from his or her home. HB 567 would protect parental rights and is currently awaiting Governor Abbott’s signature!

Other bills making their way through the process: paraphernalia decriminalization (HB 1178), cannabis insurance coverage for state employees (HB 4307), and additional proposals to reduce penalties for marijuana possession (HB 1086, HB 99, HB 3772).

Medical Cannabis

All bills (and descriptions) listed here. Details of HB 1535 here.
ACTION: Ask your senator to support medical cannabis!

Marijuana Penalty Reduction

All bills (and descriptions) listed here. Details on HB 441 here.
ACTION: Ask your senator to support marijuana penalty reduction!

Unfortunately, marijuana legalization bills have not yet been scheduled for a committee hearing. Stay tuned for updates.

Sign up for email alerts and make a donation to support our work advancing marijuana law reform!

HB 441: Marijuana Penalty Reduction | TxMJPolicy

Bipartisan Proposal: Penalty Reduction for Low-Level Marijuana Possession

House Bill 441 has been approved by the Texas House of Representatives and will soon be considered by the Senate!

The bill has bipartisan support and will reduce penalties for marijuana possession (1oz. or less). HB 441 eliminates the threat of arrest and jail time and establishes an opportunity for deferral, dismissal, and non-disclosure. 

ACTION: Contact your senator in support of marijuana penalty reduction!

Joint Authors:

Representative Erin Zwiener (D)
Chairman James White (R) | Chairwoman Nicole Collier (D)
Chairman Harold Dutton (D) | Representative Steve Toth (R)

Policy Overview:

  • Possession of an ounce or less of marijuana would be a Class C Misdemeanor, punishable by a fine of $500, but no arrest or jail time.
  • Upon payment of fine and plea of no contentre (or guilty), a case will be automatically deferred once a year, allowing the individual to avoid a criminal record if the judge’s orders are followed.
  • Dismissed cases would not generate a criminal record, which can follow a person for life and jeopardize employment prospects, housing, and educational opportunities. No automatic driver’s license suspension.
  • The bill would not legalize or even decriminalize marijuana — it would simply change the penalty. 

Criminal Penalties for Marijuana Possession Are Unreasonable


“I don’t want to see our jails stock piled with people who have possession of small amounts of marijuana.” – Governor Greg Abbott, 9/28/18

Texans overwhelmingly support reducing penalties


According to a 2021 report by the University of Houston’s Hobby School of Public Affairs, 77% of voters in Texas support a change in the law to limit punishment for the possession of small amounts of marijuana to
a fine of $250 without jail time.

Other states have successfully eliminated jail time for simple possession


● Twenty-seven states and the District of Columbia have decriminalized small amounts of marijuana. This generally means certain small, personal-consumption amounts are a civil or local infraction, not a state crime (or are a lowest possible misdemeanor, no possibility of jail time).

● Many of those laws have been on the books since the 1970s. They have been so non-controversial that several have been expanded.

Save tax-funded resources for serious crime


● Even after the legalization of hemp and with diversion programs in every major metro area of the state, DPS reports more than 45,000 arrests or citations for marijuana possession in 2019.

● During the same year, 92% of all burglaries — including home invasions — and 89% of all motor vehicle thefts went unsolved by law enforcement.

● Money spent enforcing current laws and arresting, jailing, and supervising people should instead be devoted to pursuing serious criminals.

Harsh penalties are unpopular, costly, and unfair


● A person found in possession of up to two ounces of marijuana faces up to six months in jail and a fine of up to $2,000.

● Racial disparity in marijuana law enforcement is alarming. Black Texans are 2.6 times more likely to be arrested, even though whites consume marijuana at about the same rate.

● A drug conviction for marijuana creates a permanent criminal record, carrying significant and lasting
collateral consequences.

Texas should eliminate collateral consequences of a criminal record


● Indirect consequences for possession can be worse than the punishment and can last a lifetime. Young adults can find careers, new job prospects, housing options, and educational opportunities cut short
because of a criminal record.

● More than half of the U.S. population has tried marijuana, including several who have gone on to become President of the United States. Those who get caught, however, can have their lives derailed
after getting a criminal record.

● Criminal records for simple marijuana possession has a significant effect on our economy by limiting
our workforce.

Marijuana is safer than alcohol; possession should not be criminalized in Texas


● Marijuana is less toxic, less addictive, and less harmful to the body. It does not contribute to violent and reckless behavior. Responsible adults should not be criminalized or incarcerated for choosing to
consume the safer substance.

● According to the DEA, “No deaths from overdose of marijuana have been reported.”

BIG NEWS: Texas’ First Cannabis Bills Scheduled for a Vote in the House of Representatives!

This week, the Texas House of Representatives will debate and vote on three cannabis bills!

Tuesday: House Bill 2593 would reduce penalties for cannabis concentrates.
 This proposal is incredibly important considering the outrageous felony charges currently assigned to even small amounts of cannabis oils, waxes, and infused edible products.

UPDATE: HB 2593 passed with a vote of 108-33. The bill is now on its way to the Senate for consideration.

Wednesday: Our representatives will consider HB 1535, a bill that aims to expand our state’s Compassionate Use Program. We support this legislation, but wish it went further. Click here to learn more about the bill, read our recommendations to improve the legislation, and contact your representative!

UPDATE: HB 1535 passed with an amendment to include all patients with PTSD, not just veterans. The bill was approved with a vote of 133-12 and advances to the Senate for consideration.

Thursday: The Texas House will vote on HB 441, which reduces penalties for possession of 1oz or less, making the offense a Class C Misdemeanor. It goes further to eliminate the threat of arrest and provides a chance for people to avoid a criminal conviction by offering an opportunity for deferral, dismissal, and non-disclosure. 

UPDATE: HB 441 was approved by the Texas House! It advances to the Senate for consideration.

The House will convene at 10am every day this week, but there’s no way to know exactly when the cannabis bills will be considered. Watch the livestream here at 10am. Follow this Facebook event for live updates and notifications.

Several other bills are making their way through the process and may be coming up for a vote soon. Subscribe for email updates, notifications, and action alerts!