The Texas vape ban that took effect on Monday, September 1, has one hefty limitation: possession is not included. Call it a loophole or call it “bad public policy,” as San Antonio-based cannabis lawyer Daniel Mehler referred to it when speaking with MySA, it seems Senate Bill 2024 will impact more than Texans who ride or die for vape life.
Although smoke shops and convenience stores are now barred from marketing or selling “certain e-cigarette products” under SB 2024, which also bans the sale of vapes with any cannabinoids (including THC), among other substances like alcohol, mushrooms and kratom, the bill does not criminalize the possession of these products that Texas businesses are now prohibited from advertising or selling.
“They didn’t ban possession,” Mehler stressed in a call with MySA, adding his view that lawmakers are “knee-capping Texas businesses, because people can absolutely go buy this anywhere else, or buy it on the Internet and have it shipped to them.”
The new Texas law around vaping does not explicitly prohibit Texans from seeking out legal, hemp-derived or nicotine-based products online that are produced by out-of-state companies. Per SB 2024, “A person commits an offense if the person markets, advertises, sells, offers for sale, or causes to be sold an e-cigarette product” that is now banned. This includes THC vapes, vapes fully or partially made in China or “a country designated as a foreign adversary by the United States Secretary of Commerce under 15 C.F.R. Section 791.4”, vapes that are packaged in ways that are enticing to minors, including designs with fruits or candy graphics or include celebrity names.
Still, Mehler voiced his concerns about problems that might arise around the “perception” that the possession of vapes is banned, such as the possibility of law enforcement “arresting a whole bunch of people, and we’re gonna end up in court, and we’re all gonna stand around and be like, ‘But [the law] doesn’t say anything about possession; these are legal to have.'”
He also shared his opinion that, depending on how law enforcement responds to the ban, there could be “a lot of litigation” taking place in the future because the law does not set a limitation on possession of the products that businesses in Texas are now barred from selling or marketing: “You’re basically just setting a bunch of people up for a stupid headache.”
Over the last two years, Mehler said he’s had over 100 cases representing clients who were arrested for possessing legal hemp products, noting he “hasn’t lost a single one of them.”
It is for these reasons that the vape ban — which was authored by state Sen. Charles Perry, R-Lubbock, who also penned the numerous bills that aimed to ban all THC in Texas — is what Mehler calls “poorly drafted policy.”
“I think it’s going to waste everyone’s time,” Mehler said. “As law enforcement embraces the concept of a retail ban, they could use it to harass a whole bunch of lawful businesses and small businesses that no one has a problem with. … This is some legislation that just flies in the face of public will.”
The new vape ban comes with criminal penalties, as those who sell or market banned vape products in Texas could face up to a year in jail and/or a $4,000 fine, as it is listed as a Class A misdemeanor. The ban was signed into law by Texas Gov. Greg Abbott on June 20. While the sale of THC vapes with 0.3 percent delta-9 THC is now banned, House Bill 46 — which Abbott signed into law June 21— expanded the medical marijuana program in Texas, adding new qualifying conditions like chronic pain and traumatic brain injuries and allowing the use of vaporizers for pulmonary inhalation of THC. However, the medical program still bans the use of raw cannabis flower and smoking. The bill took effect September 1.