A loophole created by a 2019 law allows retailers to sell products with high concentrations of THC. A bill closing that loophole failed to become law.
DALLAS — Consumable forms of THC, sold widely across the state of Texas, are “life-threatening” and “unregulated,” according to Lt. Gov. Dan Patrick. His proposed ban on the products, however, failed to win the governor’s support, leaving retailers and consumers in limbo.
Gov. Greg Abbott vetoed Senate Bill 3 on Sunday, about 30 minutes before the bill would have automatically passed. On the same night, Abbott announced he would call a special session, asking lawmakers to produce a bill to heavily restrict the sale of THC products, without completely banning them.
So, how did we get here? What THC products are currently allowed under Texas law? And what would the proposed Senate Bill 3 have banned?
Here’s what we know:
Texas Senate Bill 3: What THC products would it have banned?
Senate Bill 3 would have banned consumable hemp products that contained any THC, including delta-8 and delta-9. All hemp products contain unremovable trace amounts of THC. The bill would punish those found in possession of a product with THC with a fine of up to $500. Selling and manufacturing THC products would be a third-degree felony under the bill.
The veto keeps the hemp industry alive for now, and scuttles one of Patrick’s top priorities for the session. The issue stems from a Texas law passed in 2019 that allows the sale of hemp containing non-intoxicating traces of THC.
“Dangerously, retailers exploited the agriculture law to sell life-threatening, unregulated forms of THC to the public and made them easily accessible,” Patrick wrote when he introduced the bill. “These stores not only sold to adults, but they targeted Texas children and exposed them to dangerous levels of THC.”
The proposed bill would have banned consumable hemp products containing any level of THC. Abbott called lawmakers back to a special session starting July 21 and listed regulating consumable hemp products as a top priority. He argues that SB3 in its current form would be thrown out when challenged in court.
“Senate Bill 3 is well-intentioned,” Abbott wrote in a proclamation Sunday. “But it would never go into effect because of valid constitutional challenges… Allowing Senate Bill 3 to become Law, knowing that it faces a lengthy battle that will render it dead on arrival in court, would hinder rather than help us solve the public safety issues this bill seeks to contain.”
Abbott also called the industry “dangerously underregulated,” and suggested lawmakers craft legislation restricting the sale of THC products to minors. He also proposed requiring testing during the manufacturing process and allowing local governments to prohibit stores from selling THC products.
What THC products are allowed in Texas?
Hemp products containing less than 0.3% of THC are legal under the 2018 Farm Bill passed by Congress. In 2019, the Texas Legislature passed a similar law legalizing hemp products, but maintained a ban on marijuana and products containing more than trace amounts of the intoxicating Delta-9 THC compounds.
Federal law defines cannabis containing 0.3% or less of THC as hemp, and cannabis containing more than 0.3% of THC is marijuana.
However, the same 2019 law created a legal loophole that has allowed highly intoxicating THC compounds to be legally sold in Texas. Hemp, unlike marijuana, contains trace amounts of THC. However, it contains an abundance of CBD, which can be used to synthesize THC isomers, creating products like Delta-8-THC according to the National Institute of Health.
The process to convert CBD or other cannabinoids found in hemp to THC isomers was not explicitly prohibited in the federal law or Texas law.
Patrick argues that this loophole has allowed products with dangerous concentrations of THC to be sold in the form of edibles, drinks and vapes.
The hemp industry, represented by the Texas Hemp Business Council, argued that the bill would hurt adults who depend on hemp as a form of alternative medicine and farmers and small business owners who depend on hemp production for their livelihood.
“Hemp is not a threat but a resource that helps countless Texans lead healthier, more fulfilling lives,” the Texas Hemp Business Council said in a petition that received over 150,000 signatures.
The hemp industry supports 53,000 people and is estimated to generate $5.5 billion in annual sales, according to the Hemp Business Council.
Abbott faced significant political pressure from both sides of the aisle to reject the bill and withheld support or opposition for the bill throughout the legislative session, the Texas Tribune reported.
How does Texas THC regulations compare to other states?
States across the country have grappled with the regulation of Delta-8-THC since Congress removed hemp from the national list of controlled substances in 2018, according to the National Institutes of Health.
In Abbott’s proclamation, he points to an Arkansas law that attempted a similar ban on hemp products but was later struck down in federal court.
However, Colorado lawmakers effectively closed the hemp loophole by banning Delta-8-THC under the state’s controlled substance law. The Colorado Department of Public Health and the Marijuana Enforcement Division also state that the process of chemically modifying naturally occurring cannabinoids from industrial hemp is illegal. The state agency specifically prohibits Delta-8-THC from being added to food, dietary supplements, or cosmetics because there isn’t enough evidence to determine if toxic or otherwise harmful substances are produced during the process of creating or converting THC.
Colorado law also leaves open the possibility for stakeholders to work with regulators to develop compliant methods to produce THC from hemp.
“The actions taken by Colorado are commendable because they prioritize the public’s health while also acknowledging a potentially legitimate consumer demand for delta-8-THC and the potential value of safe methods of converting naturally occurring cannabinoids,” an article from the National Institute of Health states.
California is also working to restrict the sale of hemp-derived THC products, according to Reuters.
Hemp-derived THC is legal in 22 states and Washington DC, according to the National Cannabis Industry Association.