Cannabis and the Law
Disclaimer:
The State Law Library cannot tell you what a law means for your situation. Please contact an attorney for help determining what the law means for you. If you have questions or need help finding resources, please ask a librarian.
Cannabidiol (CBD) & Industrial Hemp
This page will provide you with information about CBD and the developing industrial hemp program.
What is CBD?
Cannabidiol (CBD) is a substance derived from the cannabis plant that does not have the psychoactive properties that tetrahydrocannabinol (THC) does. Hemp is defined in Section 121.001 of the Texas Agriculture Code:
the plant Cannabis sativa L. and any part of that plant, including the seeds of the plant and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.
In the past several years, there have been changes in how CBD is viewed under the law at both the state and federal levels. At the federal level, the 2018 Farm bill went into effect on December 20th, 2018. House Bill 1325, the Texas bill that created Chapters 121 and 122 of the Texas Agriculture Code, became effective on June 10th, 2019.
Federal Laws
Popularly known as the “2018 Farm Bill,” the Agriculture Improvement Act of 2018 made significant changes to how CBD is viewed at the federal level. Most notably, it defines “hemp” as cannabis with a THC concentration of less than 0.3% by dry weight and removes it from the federal controlled substances schedules.
Texas Law
This chapter of the Texas Agriculture Code, introduced in June of 2019, requires the state to develop a plan to monitor and regulate the production of industrial hemp.
This chapter of the Texas Agriculture Code, introduced in June of 2019, puts statutory requirements in place surrounding the cultivation of hemp, including licensure and testing.
Delta-8
Note A lawsuit is currently underway to determine the legal status of Delta-8 in Texas.
Consumable hemp products with less than 0.3% Delta-9 tetrahydrocannabinol THC are permitted under Chapter 443 of the Texas Health & Safety Code. The Texas Department of State Health Services recently updated its consumable hemp program guidance to clarify that Delta-8 is not legal by classifying Delta-8 as a Schedule I controlled substance:
Texas Health and Safety Code Chapter 443 (HSC 443), established by House Bill 1325 (86th Legislature), allows Consumable Hemp Products in Texas that do not exceed 0.3% Delta-9 tetrahydrocannabinol (THC). All other forms of THC, including Delta-8 in any concentration and Delta-9 exceeding 0.3%, are considered Schedule I controlled substances.
However, a temporary injunction has removed Delta-8 from the list of controlled substances while the case proceeds.
Delta-8 tetrahydrocannabinol (also called Delta-8 THC or Delta-8) is a substance derived from the cannabis plant. It is similar to Delta-9 tetrahydrocannabinol (THC), the psychoactive compound in marijuana. Delta-8 is typically made from CBD derived from low-THC hemp.
Delta-8 falls under “tetrahydrocannabinols” listed as number 31 in the list of Schedule I controlled substances. The DSHS Commissioner adds a substance to the Schedule I controlled substances list if it has:
The designation for Schedule I substances is in Section 481.035 of the Texas Health & Safety Code. Offenses and penalties related to the possession or manufacture of controlled substances are found in Chapter 481, Subchapter D of the Texas Health & Safety Code.
Delta-8 may be viewed differently at the federal level. In August of 2020, the federal Drug Enforcement Agency updated its scheduling regulations to remove hemp from the list of controlled substances, provided it has less than 0.3% Delta-9 tetrahydrocannabinol THC by dry weight. The DEA made the changes in order to adhere to the Agriculture Improvement Act of 2018 (also called the 2018 Farm Bill). These changes may make other types of tetrahydrocannabinols (THC) like Delta-8 legal under federal law.
According to an article in the Houston Chronicle, “Any time the DEA changes its rules on controlled substances, individual states are allowed to choose whether or not to adopt the changes or stick with their existing rules.” Texas chose not to adopt the federal rules to legalize Delta-8.
Texas Laws & Guidance
This statute allows the Commissioner of the Texas Department of State Health Services to establish or modify controlled substance schedules.
This statute contains a breakdown of the different classifications used in the scheduling of controlled substances.
This guidance page from the Texas Department of State Health Services clarifies the rules and regulations for consumable hemp products in Texas. Delta-8 is excluded from the consumable hemp products covered in Texas Health and Safety Code Chapter 443.
This list of controlled substances from the Texas Department of State Health Services is divided into schedules based on the substance’s medical use and potential for abuse.
Federal Rules & Regulations
In August of 2020, the DEA announced modifications to the federal scheduling of controlled substances to adhere to the 2018 Farm Bill in the Federal Register.
Understanding the Law
This FAQ from the Texas Department of State Health Services explains the legality and requirements for consumable hemp products in Texas.
This Houston Chronicle article discussed the new restrictions on delta-8 after its addition to the Texas controlled substances list.
This article from the Dallas Observer discusses the most recent developments in the lawsuit over Delta-8.
Updates on Texas’s Industrial Hemp Program
In 2019 the Texas Legislature paved the way for a state industrial hemp program. This program allows people to grow industrial hemp (defined as “the plant Cannabis sativa L. and any part of that plant, including the seeds of the plant and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta 9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”)
There are several state agencies that have adopted and amended rules and regulations in order to administer the new industrial hemp program. We have provided links to agency updates on their progress below.
Federal Rules & Regulations
The United States Department of Agriculture (USDA) issued a final rule with regulations for the federal industrial hemp program on January 19th, 2021. This rule became effective on March 22, 2021.
Texas Rules & Regulations
The Texas Department of Agriculture has adopted rules regarding the administration of Texas’s hemp program, effective March 11, 2020.
The Department of State Health Service issued rules regarding the manufacture, distribution, and sale of consumable hemp that went into effect on August 2, 2020. Rules within this chapter that ban smokable hemp are temporarily blocked while a lawsuit challenging them is underway.
The Texas Department of Agriculture is responsible for administering the cultivation of industrial hemp in Texas. This department was responsible for submitting a plan to monitor and regulate the hemp industry in Texas to the USDA. Their page provides information and answers to frequently asked questions for those wishing to obtain a permit to grow hemp.
Under HB 1325, the Texas Department of State Health Services is responsible for administering licenses for those who wish to manufacture or sell consumable products containing hemp. This page has information on the agency’s progress as well as answers to frequently asked questions about the manufacture and sale of products containing hemp.
The Texas Department of Agriculture has published a list of varieties of hemp that have been approved for cultivation.