Is CBD Oil Legal in Texas? | Prosecution Depends on Location (2020)
By Benson Varghese
People think since you can purchase CBD at almost any corner store in Texas, that it must be legal. Even elected district attorneys have different opinions about the legality of CBD oil in Texas. In this article we’re going to take a look at the circumstances under which CBD oil is legal and the arguments some prosecutors are making to charge individuals who possess CBD oil in Texas.
The cannabis plant contains over 100 cannabinoids. THC and CBD are the two most commonly discussed cannabinoids. Legislators at both the state and federal level have started recognizing the therapeutic value of CBD and CBD oils, although the legal landscape surrounding CBD oils is far from straightforward for Texans who want use it. Some of the confusion surrounding CBD stems from recent legalization at the federal level and very limited legalization in Texas.
Texas Governor Signs Law Legalizing Hemp Production, CBD
On June 10, 2019, Governor Greg Abbot signed a new law making CBD legal in Texas as long as it contains .3 percent or less THC. The law, which was House Bill 1325, went into effect on September 1, 2019, enacted the following:
- Defined hemp under the Agriculture Code as the cannabis plant and all derivates, extracts, cannabinoid, isomers, etc. that has no more that 0.3 percent THC on a dry weight basis.
- Required a memo of understanding between the Department of Agriculture and Department of State Health Services requiring DSHS to cooperate with the Department of Agriculture in developing a hemp production plan.
- Amended the Health and Safety Code to specifically exclude hemp from being a controlled substance. It also specifically exclude THC found in hemp.
- Excluded hemp from the definition of marijuana.
Will You Be Prosecuted for Possession of CBD Oil?
Whether you will be prosecuted for possession of CBD oil in Texas depends entirely upon where you are located. In North Texas, Denton County is not prosecuting CBD oil only cases, Dallas County is “not aggressively prosecuting” CBD oil cases, and the Collin County District Attorney is still deciding. Tarrant County, on the other hand, is prosecuting CBD oil cases. As we will discuss later, officials can chose to prosecute CBD oil that contains THC for Possession of a Penalty Group 2 Substance in Texas. While all elected prosecutors understand that theory of prosecution, the reality is that CBD oils usually contain less than .3 percent of THC, if they contain any at all.
Tarrant County’s position has been to prosecute cases with THC. Additionally, the First Assistant District Attorney recently stated to a local news organization that Tarrant County will prosecute possession of CBD oil not containing THC as a misdemeanor offense. (More on this later.)
Where is CBD Oil Legal in Texas?
CBD Oil is legal everywhere, as long as it falls under the .3 percent threshold.
Is CBD Oil Illegal Federally?
CBD is no longer illegal under federal law. On January 1, 2019 – with the passage of the Agricultural Improvement Act of 2018 (also known as the Farm Bill Act) – it became legal to grow or possess hemp under federal law as long as it has less than .3 percent THC.
CBD oil is a derivative of the hemp plant, therefore making it legal under federal law as long as it has less than .3 percent THC.
It’s important to point out that cannabis products (hemp-derived or otherwise) marketed with a claim of therapeutic benefit must be approved by the FDA. (Source: FDA)
CBD Prosecution Texas
Prosecutors in some jurisdictions, like Tarrant County, will have CBD tested for the presence of THC. If there is any detectable amount of THC, they are filing these cases as Possession of a Controlled Substance – Penalty Group 2 under Texas Health and Safety Code 481.103 and 481.116.
Like marijuana, prosecution based on possession of CBD products in Texas is largely a function of where you are, not what you possess.
We made an open records request to the Tarrant County District Attorney asking for the number of CBD oil cases that were prosecuted by her office.
While we continue to analyze those numbers, we did obtain information from the Office of Court Administrations that shows the effect an elected District Attorney can have on the cases pursued by the office.
For example, prosecution of misdemeanor marijuana cases in Tarrant County has increased seven times the state average since the beginning of the current district attorney’s administration, exceeding even more conservative neighboring jurisdictions. Not to mention, both the Republican governor and the Texas Republican platform support decriminalization of marijuana.
CBD Oil as a Misdemeanor
The Texas Controlled Substances Act is codified under Texas Health and Safety Code Chapter 481. Health and Safety Code Section 481.032 says that the Commissioner of State Health Services is to set out what substances are deemed Controlled Substances in Texas under Schedules I through V. Chapter 481.034 retains the right for the legislature to remove substances from the Controlled Substance list. In May of 2017, the Texas Commissioner of the Department of State Health Services, Dr. John Hellerstedt, ordered “that the substance Marijuana Extract, meaning an extract containing on or more cannabinoids that has been derived from any plant of the genus Cannabis, other than the separated resin (whether crude or purified) obtained from the plant) into Schedule I.Health and Safety Code Section 481.119(b) makes possession of a “controlled substance listed in a schedule by an action of the commissioner…but not listed in a penalty group” a Class B misdemeanor offense.
Theories for CBD Prosecution in Texas
Possession of CBD Oil is specifically distinguished from the possession of marijuana in Texas. Texas Health and Safety Code Section 481.002 excludes oils and resins from the definition of marijuana.
If you go through Chapter 481 of the Health and Safety Code, you will find substances like THC (Tetrahydrocannabinol) and dronabinol (synthetic marijuana). What you won’t find in Chapter 481 is “cannabidol.” You also won’t find any of the other descriptors of cannabidol found on the Open Chemistry Database maintained by the National Center for Biotechnology Information or in any penalty group in Texas.
As of May 2017, however, you will find the addition of “Marihuana Extract” in the Texas Register [PDF] (not the Health and Safety Code) by the order [PDF] of the Commissioner of the Department of State Health Services. That order is what the Tarrant County District Attorney is using as a basis to prosecute CBD oil possession cases at the misdemeanor level.
Prosecution of CBD Oil in Tarrant County
An NBC 5 investigation first brought the prosecution of CBD oil in Tarrant County to light. In an interview with NBC 5, the Tarrant County First Assistant District Attorney said Tarrant County is “going to enforce the law.” When he says that any amount of CBD oil is illegal – and a misdemeanor offense if it does not contain THC – the law he is referring to is not one passed by Texas legislators. Texas legislators have not specifically made cannibidiol a controlled substance. A medical doctor, who serves as the DSHS Commissioner, added cannibidiol to the list of controlled substances.
After the NBC5 investigation broke and the interview aired, the elected District Attorney released a statement that she has “not spent and do[es] not expect to spend significant resources on cases involving CBD oil.”
We are unaware of any other district attorney in Texas that is prosecuting misdemeanor CBD oil under this theory. According to the NBC 5 investigation, no other county in North Texas is prosecuting CBD oil possession as aggressively as Tarrant County.
Have Recent Amendments Made CBD Oil Legal?
Effective April 5, 2019, Dr. Hellerstedt amended the listing for marijuana and THC to fall in line with the federal Farm Bill Act. [PDF]
The changes are as follows: First, “[t]he term marihuana does not include hemp as defined in section 297 A( I) of the Agricultural Marketing Act of l 946.” Second, THC no longer includes THC contained in “hemp (as defined under section 297A( I) of the Agricultural Marketing Act of 1946)”However, “marijuana extract” still means “an extract containing one or more cannabinoids that has been derived from any plant of the genus Cannabis other than the separated resin (whether crude or purified) obtained from the plant.”As a result, the April 5, 2019 amendment only added more confusion for citizens, law enforcement agents, and prosecutors across the state. Additionally, this amendment is not going to keep Tarrant County from continuing to file charges.
Felony Prosecution of CBD Oil in Tarrant County
In Tarrant County, if the CBD contains THC, the case is the filed as a felony as a Penalty Group 2 illegal substance. This penalty group is generally reserved for hallucinogens, their salts, isomers, and salts of isomers.
What most people don’t realize is the person charged with Possession of a Penalty Group 2 substance is charged with the entire weight of the substance, including “adulterants or dilutants.” In other words, a small eye dropper bottle of CBD oil with half an ounce of liquid could contain a second-degree felony amount of drugs. That means the person is facing 2 to 20 years in prison and up to a $10,000.
Individuals possessing CBD oil, which is sold and marketed as being free of any psychoactive ingredients, are being punished as though it were equivalent to PCP, MDMA, or Ecstasy, or other hallucinogenic Penalty Group 2 substances.
What is CBD Oil?
CBD is short for Cannabidiol. Like THC, it is one of 85 cannabinoids present in the cannabis plant. CBD Oil contains high levels of CBD and trace amounts of THC. The lack of high levels of THC makes CBD Oils non-psychoactive.
What is THC?
THC is short for Tetrahydrocannabinol. This is one of many chemical compounds found in cannabis. THC is responsible for the psychological and euphoric effects of the drug. In other words, it is what makes people feel “high” when they smoke or ingest marijuana.
How is CBD Different From THC?
The short answer is, unlike THC, CBD is not psychotropic. Consequently, it doesn’t result in a euphoric high the way THC does.
The longer answer is far more interesting. It is important to first distinguish marijuana from hemp. Scientifically, both marijuana and hemp come from the “cannabis sativa” plant, according to the USDA. Marijuana, though in the same scientific family as hemp, is a much smaller plant. Hemp, the taller and more fibrous version of the sativa plant has a long history in the United States. In fact, George Washington grew hemp on Mount Vernon.
Over years of breeding, the cannabis plant was developed to have high levels of THC. It is this breeding to elevate THC levels that has spurred the illegal marijuana market. Because CBD comes from an entirely different plant than marijuana, its chemical properties are different.
THC is found in large quantities in cannabis, or what most people think of as the marijuana plant. Unlike cannabis, or marijuana, hemp contains low concentrations of THC. CBD Oils are generally made from the hemp plant so they contain high levels of CBD and trace levels of THC. As a result, CBD provides a less controversial alternative to THC for health benefits.
What is the Compassionate Use Act?
In 2015, Governor Greg Abbott signed into law what’s known as the Texas Compassionate Use Act, which allows the use of CBD oils to treat seizures caused by intractable epilepsy. The Act legalizes oils containing CBD for treatment of epilepsy, as well as other chronic medical conditions for those who have not responded positively to use of federally approved medications.
The Act authorizes the Department of Public Safety to license dispensing organizations, which function similar to compounding pharmacies. Only neurologists and epileptologists are able to offer prescriptions for CBD oil. While the law was implemented in 2015, access to CBD was delayed until 2017 to allow for additional time to create a system to ensure that distribution is confined to genuine medical necessity along with a detailed registry identifying doctors and dispensaries.
Selling CBD Oils without FDA Approval
Under current federal law, unapproved sellers of CBD Oils who describe the medical benefits of CBD Oils should at the very least expect to get a Cease and Desist letter from the FDA with language along the lines of:
Your product is not generally recognized as safe and effective for the referenced uses and, therefore, the product is a “new drug” under section 201(p) of the Act [21 U.S.C. § 321(p)]. New drugs may not be legally introduced or delivered for introduction into interstate commerce without prior approval from the FDA, as described in section 505(a) of the Act [21 U.S.C. § 355(a)]; see also section 301(d) of the Act [21 U.S.C. § 331(d)]. FDA approves a new drug on the basis of scientific data submitted by a drug sponsor to demonstrate that the drug is safe and effective.
Furthermore, your product is offered for conditions that are not amenable to self-diagnosis and treatment by individuals who are not medical practitioners; therefore, adequate directions for use cannot be written so that a layperson can use this drug safely for its intended purposes. Thus, ______ is misbranded within the meaning of section 502(f)(1) of the Act, in that its labeling fails to bear adequate directions for use [21 U.S.C. § 352(f)(1)]. The introduction of a misbranded drug into interstate commerce is a violation of section 301(a) of the Act [21 U.S.C. § 331(a)].
What Can CBD Oil be Prescribed for in Texas?
Studies show CBD oil has promise in the following areas: anxiety relief, anti-seizure, and pain relief.
However, in Texas, the only approved treatment at this time or the reduction or elimination of seizures. Notably, Florida passed a similar law in 2014, but in 2016, voters amended the law to allow for full THC forms of cannabis for those suffering from a broader variety of medical conditions, such as PTSD, MS, cancer, and HIV. Texas does not allow CBD oil for Parkinson’s patients.
In May of 2017, the Texas Department of Public Safety awarded licenses to produce, process, and dispense CBD oil to three companies. These companies, Cansortium Texas, Compassionate Cultivation, and Surterra Texas, each pay a licensing fee in order to operate facilities to produce and dispense CBD oils under the Compassionate Use Act.
Are THC Oils and Waxes Legal in Texas?
No. As of August 2017, possessing THC oil is not only a crime but also considered a more serious crime than possessing marijuana in its traditional form. In Texas, it is a felony to possess THC oil or wax. The seriousness of the felony varies based on the amount of THC oil possessed. For example, possession of less than one gram of THC oil is a state jail felony that is punishable by six months to two years in a state jail facility and a fine of up to $10,000.
Possessing one to four grams of THC oil is a third-degree felony, punishable by 2 to 10 years in prison and a fine of up to $10,000.
Possession of four to 400 grams of THC oil or wax is a second-degree felony. In Texas, a second-degree felony is punishable by 2 to 20 years in prison and a fine of up to $10,000.
Finally, possession of more than 400 grams of THC oil or THC wax is classified as a first-degree felony. This is the most serious felony for which someone can be charged for possessing THC oil or wax. This crime is punishable by 5 to 99 years in prison and up to a $10,000 fine.
Changes in Texas Law
House Bill 2107 was brought during the 2017 legislative session with a number of vocal supporters. The bill sought to remove the “low THC” restriction and amend the law to allow for “medicinal marijuana.” It also sought to expand the types of conditions that can be treated with cannabis by including post-traumatic stress disorder and terminal cancer. Finally, the bill sought to modify the language, from requiring a doctor’s prescription to requiring a doctor’s recommendation. This change intended to address concerns about the legality of physicians prescribing something prohibited by federal law. Despite having 77 sponsors and co-sponsors, 29 of whom were Republican, the bill died in committee. Given strong support, as well as national trends, changes in Texas law are likely to occur in the future.
The complicated nature of the laws governing CBD oils makes the possession of CBD oil very defensible, especially if the CDB oil has no detectable amount of THC. If you have been arrested for an offense arising from the possession of CBD oil in North Texas, contact us at (817) 203-2220. You can also contact us online.
Is CBD Oil legal in Texas? Federal laws have recently changed. Do you know if it is legal to purchase or use CBD Oil in Texas?
CBD products are everywhere in Texas since the state legalized hemp. Experts warn: buyer beware.
Much of the sudden spike in popularity is thanks to a Texas law last year that legalized hemp, the plant from which CBD is derived.
by Naomi Andu Jan. 23, 2020 12 AM Central
In 2017, business was slow for Sarah Kerver. She was a sales rep for a Colorado-based company trying to push hemp and CBD products in Texas. But customers were apprehensive.
“No one wanted to touch [CBD]. No one wanted to talk about it. No one was interested in carrying this product in any sort of spa or retail space,” Kerver said.
Today, the market for CBD, or cannabidiol, is exploding. Stores are popping up across the state selling tinctures and topicals. It’s being mixed into smoothies and coffee at cafes. Spas are advertising CBD massages and therapies. And much of the sudden spike in popularity is thanks to a Texas law last year that legalized hemp, the plant from which CBD is derived.
“You go anywhere now, and you find something that says ‘CBD’ on it,” said Kerver, who’s now in talks with Austin distributors interested in carrying her CBD product line, called 1937 Apothecary.
But buyer beware, experts warn. Anyone can sell CBD in Texas. Many of the products are advertised as natural alternatives to prescription medications and make unfounded claims to treat conditions like chronic pain, depression, anxiety, insomnia, diabetes and psychosis. None of these claims are recognized by the U.S. Food and Drug Administration.
And because of lax labeling and licensing regulations, unsuspecting consumers may not actually know what they’re buying.
“Unless you really know that it’s something reputable, I would say to be wary because you don’t really know that it is even CBD,” Kerver said.
In 2018, the federal government passed a new Farm Bill legalizing hemp and derivatives, like CBD, with less than 0.3% of THC, or tetrahydrocannabinol. Hemp and marijuana are both part of the cannabis plant family, but while marijuana is rich in THC and produces a high, hemp contains only traces of the psychoactive compounds and is richer in CBD.
In June, Gov. Greg Abbott signed a bill legalizing hemp and bringing state policy in line with federal law.
Confusion on the part of law enforcement has led to the wrongful arrests of some in possession of CBD or hemp even after the Texas law went into effect. Still, the policy change is an important step on the way to allowing Texans to partake without fear of reprisal, according to Lisa Pittman, a lawyer on the Texas Department of Agriculture’s industrial hemp advisory council.
Because Kerver launched her line before the Texas bill, she’s seen firsthand how changes in the law have led to evolving attitudes in Texas about the products. Previously, she was able to sell Colorado CBD products before the federal government legalized hemp because of the 2014 Farm Bill, which started a pilot program for participating states to grow industrial hemp.
“There’s been more media around it since Texas has come on board, definitely,” Kerver said. “Texans are becoming more educated about it and much more open to it.”
Industry leaders say they can’t calculate the exact number of new CBD businesses that have opened in Texas over the past year — in part because the Texas Department of State Health Services won’t implement licensing requirements until early this year — though anecdotally, many say they’ve seen an uptick.
The Austin Chamber of Commerce counted at least three CBD-related relocations or expansions since the bill passed last summer, creating about 140 new jobs in the emerging sector. But the list, which is compiled from public media announcements and deals the chamber is involved in, isn’t comprehensive.
Sisters Shayda and Sydney Torabi founded Restart CBD in September 2018, just before the Farm Bill passed. Sydney Torabi said the changes in the law have made business run more smoothly.
The two originally intended to operate the business exclusively online but decided to open a brick-and-mortar location in Austin after having difficulty with several online payment companies, from mom-and-pop merchants to giants like PayPal, that didn’t want anything to do with cannabis.
“We were a business, but it wasn’t as functional as it could’ve been until the [Texas] law passed,” Sydney Torabi said.
The Torabis started with a pop-up store and expanded to a permanent location last April, a month before Texas law changed.
“We were operating in a gray area until the Texas bill passed,” Sydney said. “It did take away a little bit of the stigma. Like, ‘OK, now it’s legal in Texas. We can go to a CBD shop and not feel like we’re doing something bad.’”
CBD comes in many forms: smokeable flower, tinctures, topicals, edibles and much more.
It’s not cheap. For example, offerings at Custom Botanical Dispensary, Kerver’s Austin-based collective, range from capsules ($96 for 30) and a Full Spectrum Tincture ($82 for 1 ounce) to a PMS Dark Chocolate Bar ($18), infused popcorn ($7) and even Pet Hemp Oil in flavors bacon and tuna ($40).
Despite lofty and wide-ranging claims, CBD is only FDA-approved to treat two rare kinds of epilepsy via prescription drug Epidiolex. In part, this is because little research has been done in the U.S. on the hemp derivative.
But the FDA also says the jury’s still out as to whether CBD is considered a safe substance.
“CBD has the potential to harm you, and harm can happen even before you become aware of it,” the agency said in a November consumer update, going on to list potential repercussions like liver injury. The effect on children and pregnant or nursing women is unknown, the FDA added.
In the meantime, businesses nationwide are getting wrist slaps for making medically unproven promises.
In November, the FDA sent warning letters to 22 CBD sellers across the country, including Noli Oil in Southlake. The letter to Noli Oil cited a myriad of illegal health claims, from inhibiting cancer cell growth to treating schizophrenia and antibiotic-resistant infections.
Also flagged was the company’s sale of edibles, like gummy bears and caramels, in interstate commerce. While CBD-infused food products can be manufactured and sold in Texas, they can’t cross state lines because the FDA considers the compound an “adulterant.”
Other sellers were targeted for falsely marketing CBD as a dietary supplement.
When it comes to touted benefits, Dr. Yasmin Hurd of Mount Sinai’s Addiction Institute said she’s cautiously optimistic.
“Can I say go be a guinea pig yourself? Unfortunately, just because of my position, I can’t really approve that,” Hurd said. “But clearly, hundreds of thousands of people are doing research on themselves and trying to find out what works on their particular ailment.”
There is some evidence to suggest it could be beneficial for anxiety, psychosis and substance abuse, Hurd said. Other claims, like its effect on chronic pain, are more dubious, at least until more research is done, she added.
But Kerver said her own experience and the testimonies of friends and family have convinced her of CBD’s efficacy.
Her husband found relief from inflammation after back surgery, and her siblings from anxiety and sleep issues. She said she has seen her own gut problems clear up completely.
“When someone has been constantly taking something for well over a year, and it’s still working for them for the same thing, and they have to have it, that’s not the placebo effect anymore,” Kerver said.
Hurd also warns that CBD can impact the performance of other medications, so those interested in trying it should first consult a doctor to learn more about potential interactions. Otherwise, CBD is relatively safe, she said, with the most common side effects being diarrhea and sleepiness.
Until stricter regulations, like requiring retailers to have CBD-specific licenses, are put in place this year, Kerver said there is little protecting consumers from bad actors. Still, there are some measures people can take to protect themselves while the Texas hemp industry is in limbo, starting with labels and vendors.
Pharmacies and health food stores are preferable to smoke shops and gas stations, according to Pittman.
“Avoid anything that has a pot leaf on it or that doesn’t look like a clean, medical product,” Pittman said.
Any reputable company will make test results easily accessible, and customers can use them to check THC content; trace amounts under 0.3% may still cause someone to test positive for marijuana on a drug test, Hurd said.
Buyers should also be wary of products that make any explicit health claims, which are considered illegal by the FDA. While retailers can say a particular CBD product helps alleviate a symptom, like difficulty sleeping, they can’t say it treats or cures a diagnosable condition, like insomnia, according to Pittman.
“That’s where we walk the fine line,” Kerver said. “We can’t say anything, but luckily we’ve been in business long enough to go, ‘I’ve got 10 customers, they all use this for sleep, and they’re all coming back for it for sleep, and they buy it every month for sleep, and they’re really happy with it.’”
Correction: An earlier version of this story incorrectly stated how Texas criminally classified hemp before the state’s hemp law was passed.
Disclosure: The Austin Chamber of Commerce has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.
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Much of the sudden spike in popularity is thanks to a Texas law last year that legalized hemp, the plant from which CBD is derived.