Recreational marijuana is not legal in Texas, but you can still buy THC. Federal legislation passed in 2018 allowed Texas farmers to start growing hemp — and a legal loophole also let businesses sell hemp products that can get you high.
The state is now trying to regulate the hemp industry more forcefully with new rules that ban smokable hemp and jack up fees for businesses that sell hemp products. A judge has put a pause on those rules, but whether that pause will continue gets decided in a court hearing this week.
KUT's Nathan Bernier has been untangling this issue and joined KERA's Ron Corning and Miranda Suarez to explain what's going on.
These interview highlights have been edited for length and clarity. You can hear the full conversation by clicking 'listen' above.
What's the difference between hemp and marijuana?
It has to do with the amount of delta-9 THC, the main psychoactive ingredient in cannabis. Hemp is cannabis, marijuana is cannabis — it's the same plant. The demarcation is the amount of delta-9 THC. If it has less than 0.3% delta-9 THC by dry weight, it's hemp. If it has more than that, it's marijuana. How you measure that has become one of the central questions in this upcoming legal dispute but under Texas law, that's the standard adopted in 2019 after Congress approved the Domestic Hemp Production Program.
What led to the hearing this week?
The Texas Legislature voted to ban all hemp and THC products last June, which Governor Greg Abbott vetoed. He then called two special sessions to try to regulate the industry, but state lawmakers couldn't agree on whether to regulate hemp or to ban it outright, so nothing happened.
In December, the Department of State Health Services released its proposed regulations for the hemp industry and there was a month of public comment. Ultimately, DSHS did not adopt those regulations until early March. They notified hemp businesses March 11th that the rules would be taking effect March 31st, so businesses had 20 days notice that the rules were going into effect.
What regulations are in dispute?
A lot of the rules are supported by the hemp industry, like requiring child resistant packaging and clearer labeling standards. There's also provisions in the regulations that require companies to have more rigorous testing and recall procedures. Those are not being challenged.
One of the new rules that is being challenged has to do with fees that hemp sellers are required to pay. Retail locations that sell consumable hemp products in Texas used to be charged a fee of $150 per location per year. That's gone up to $5,000. The annual fee also increased for manufacturers, from $250 to $10,000. The plaintiffs are making the case that these fees are essentially an unconstitutional tax being imposed on these businesses.
The other big issue is, how do you measure THC content? Because state law says anything over 0.3% delta-9 THC is marijuana, but cannabis contains many other cannabinoids that are mind-altering.
What are some of the arguments in favor of regulations?
The Attorney General's office is representing the defendants in this case but didn't have a filing by the temporary restraining order hearing April 10th. They certainly will before the temporary injunction hearing next week. But the AG's office pointed to a particular case involving a defendant who was caught with cannabis vapes. In this case, it was an appeals court ruling that essentially said the trial court did not err in considering THC-A as delta-9. That is a little complicated because it's a criminal case, but I look forward to seeing the filing from the Attorney General's office to go through their arguments in more detail.
What will be decided from the lawsuit hearing this week?
The hearing this week will be over a temporary injunction, which is just a legal term that means putting rules on pause until the trial can happen.
The temporary injunction hearing is scheduled to take place over three days, from Tuesday to Thursday, and there will be arguments presented from both sides. At the end of that, the judge will have to make a decision as to whether or not these regulations should remain in effect while the case proceeds.
The plaintiffs are going to try and make the case that leaving the rules in place will be disruptive and cause irreparable damage to these businesses before we even have a decision as to whether the rules are constitutional. So that's what the judge will have to rule on.
Ron Corning and Miranda Suarez are the hosts of KERA's forthcoming talk show, NTX Now. Got a tip? Email them at rcorning@kera.org and msuarez@kera.org.
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