Texas Gov. Greg Abbott signed House Bill 1325 into law, June 10, which legalized hemp and its derivatives with little to no opposition from either side.
CBD and hemp products are reportedly helping many people, just make sure you are following the guidelines in order to enjoy your products without legal backlash.
The bill defines the meaning of hemp as the plant Cannabis sativa L. “with a tetrahydrocannabinol concentration of not more than 0.30% on a dry weight basis.”
It also states: “A local municipality, county or other political subdivision of this state may not enact, adopt, or enforce a rule, ordinance, order, resolution, or other regulation that prohibits the processing of hemp or the manufacturing or sale of a consumable hemp product as authorized by this chapter,” according to capitol.texas.gov.
What is there to disagree on?
The bill and Governor's letter state the 'Congress’ 2018 Farm Bill differentiated hemp from marijuana by setting a tetrahydrocannabinol threshold concentration of 0.3%. Anything above 0.3% is still considered marijuana and therefore generally illegal in Texas.'
This low percentage does not allow a high or any psychotropic effects. Medical prescription recipients are allowed up to .5%.
So why is there so much controversy over this new bill?
It would seem if you ask 10 people about HB1325 you’ll get a variety of answers. According to several attorneys, people are confused and struggling to interpret the bill. At this stage of the game for law enforcement and attorneys alike it has caused a three-ring circus. This is due to the labs lack of equipment and funding to purchase needed equipment necessary to distinguish the difference between hemp and marijuana. When lawmakers passed this bill the current testing abilities were not designed to keep up with the expense of updating the 13 DPS crime labs and staff training could be close to approximately $6.5 to $7.5 million dollars.
What does this mean for the public?
Law enforcement makes arrests based on probable cause. One example could be, a person who vapes CBD oil gets stopped for a traffic violation. If the officer suspects the CBD is a THC oil, depending on the officer, he can, but is not obligated to, use a field kit to test it. Field kits are only capable of testing the presence of THC, not the strength. That officer could potentially arrest the person for possession of marijuana.
In determining if the case should go to court the samples would be sent for testing, but where, if none of the labs are capable?
One attorney based out of the Metroplex recently had a podcast on this topic. In a courtroom the burden of proof is on the prosecuting attorney. If the definition of what is or is not marijuana is based completely on the percentage of THC present, and labs are not fully equipped to quantify the amount of THC in a sample, you can see the difficult situation this causes both sides. One officer who did not wish to be quoted expressed frustration over bills being passed without consideration of those required to enforce them having the proper tools to do so.
This is leading some of the larger counties to dismiss hundreds of cases in spite of the Governor reiterating he did not legalize marijuana. Likewise, many smaller more conservative counties are considering anything that tests positive as marijuana. The Governor and Lt. Governors response was to use circumstantial evidence, but some district attorneys have pushed back and say testing is absolutely necessary, and until this can be done, they are refusing to take any misdemeanor marijuana cases and dropping pending ones.
So what do you need to know as a consumer?
If you purchase CBD/hemp products require a certificate of authenticity for the batch your product comes from and carry it with you, some companies have these posted on their websites. Otherwise you could be illegally transporting which is also a misdemeanor.
According to the letter from Governor Abbott, “H.B. 1325 directs the Texas Department of Agriculture to pass rules requiring hemp producers to be state-licensed and test their products to ensure 0.3% or less THC concentration. Importantly, the law also requires a shipping certificate that confirms the product in transport is legally compliant hemp (no more than 0.3% THC). Failure to have the required certificate during transport is a misdemeanor and also subjects the person to a civil penalty of up to $500 per violation.
In short, H.B. 1325 gave prosecutors more tools to prosecute these crimes, not less, because they can now prosecute a misdemeanor for failure to have a proper hemp certificate.
“While some businesses have in-house scientists and chemists to ensure that they are complying with State and Federal regulations not all do. It appears that even cheaper "THC FREE" labeled goods sold at local gas stations can still contain amounts of THC,” Athens attorney Justin Weiner said, “The crux of this issue is that there is no regulatory body (i.e. the FDA) that ensures any sort of quality control or compliance. So people can purchase something that is labeled "THC FREE" with every intention of not consuming THC and still test positive for it and be prosecuted for it. The bottom line is that any substance with a detectable amount of THC would allow an officer to arrest an individual for possession of marijuana.”
It is vital your CBD products are in a properly labeled container by the manufacturer, and ideally sealed.
Some would argue that it would be wiser to legalize marijuana as opposed to Texas bearing the huge expense of equipment necessary to quantify such trace amounts, but being a more conservative state Texas may not be ready for that.
While equipment is updated and precedents are set as guidelines for future cases, purchase your CBD products from reputable businesses. Reputable meaning manufacturers that test each batch and hold them to the standards set by the state of Texas.
That being said walking around with a baggie of hemp may still be a bad idea.