Since implementation of the Agricultural Act of 2018 (“Farm Bill”) on January 1, 2019, we have had several business and individuals in Texas contacting our office regarding growing hemp in Texas. Most want to begin growing hemp on their land in Texas or want to know how to lease their land to a hemp farm in Texas. Unfortunately, hemp growth in Texas remains illegal.
Didn’t the Farm Bill Legalize Hemp?
Federally, hemp grown pursuant to §297(a) of the Farm Bill is legal. The federal Controlled Substances Act (“CSA”) was amended so that “‘the term ‘marihuana’ does not include hemp as defined in section 297A of the Agricultural Marketing Act of 1946” and the definition of tetrahydrocannabinols was amended to “except for tetrahydrocannabinols in hemp (as defined under section 297A of the Agricultural Marketing Act of 1946).’’ However, the Controlled Substances Act governs only federal law, not state law. Under the concept of dual sovereignty, the States have the right to implement and govern their own respective criminal statutes. Thus, if your State has a statute providing that hemp is illegal to possess, your State may prosecute you if you are caught in possession of hemp in violation of the State law. You would not be subject to prosecution by the federal government through the Department of Justice.
Here in Texas, THC remains a schedule I substance under the Texas Health and Safety Code. The only individuals in Texas who are permitted to possess cannabidiol oil (“CBD”) with up to .5% THC are those who have a recommendation pursuant to the Texas Compassionate Use Act. The Texas Compassionate Use Act only allows for recommendations for one condition: intractable epilepsy. To qualify for a prescription, the patient must be a Texas resident, must have not responded to a minimum of two FDA-approved treatments for the condition, and must have approval from two separate qualified doctors. Less than forty doctors are currently qualified and any prescribing physician must register with the Texas Department of Public Safety (“DPS”), must specialize in epilepsy or neurology, and must be certified by the American Board of Psychiatry and Neurology or the American Board of Clinical Neurophysiology.
Apart from the criminal implications, many businesses state that they are willing to take the risk to begin hemp farming here in Texas. “Not so fast,” we have to tell them. Though the Farm Bill represented great progress for the hemp industry, it does not provide carte blanche permission for anyone to simply go out and begin growing hemp. If your State does not elect to participate by submitting a cultivation plan, then the Farm Bill’s protections will not apply to you. Texas has not yet submitted a cultivation plan and did not do so under the 2014 Farm Bill. It remains illegal to grow hemp in Texas. Until Texas either passes legislation to permit growth of hemp as an agricultural commodity and amends its criminal statute or submits and is approved for cultivation plan pursuant to the Farm Bill, you cannot grow hemp in Texas.
What Can We Do to Legalize Hemp Growth in Texas?
The Texas Legislature meets from January to May and convenes once only every two years. If the Legislature does not pass legislation permitting hemp growth in Texas, the next chance will not come until 2021. Thankfully, our Legislature is currently in session. If you want to see passage of a bill allowing hemp to be grown in Texas, you need to be speaking to your legislators. Call their offices, write them a letter, or better yet, set up an appointment to speak to them in person. Though we have seen great progress in the understanding of what hemp is, there still remains a plethora of misinformation and misunderstanding. Education can be the key to getting legislation passed in Texas that will allow hemp to be grown in Texas.
Call to Action
We have high hopes that the Texas Legislature will realize that hemp is a valuable agricultural commodity for the State. Hemp is a soil detoxicant, requires little water compared to many of our staple crops, has quick production rates, and is subject to few pests and diseases. With the amount of land in Texas, we should be leading the nation in hemp growth, not continually falling behind. Our office works with hemp and hemp-derivative businesses across the United States. We are prepared for and working towards achievement of legislation that allows you to grow hemp in Texas and are ready to assist you in obtaining a license to grow hemp. However, we need you to do your part by contacting your legislators today.
Because of the grey area regarding CBD in Texas right now, we highly recommend you seek legal counsel before selling or distributing CBD. We represent numerous CBD manufacturers, wholesalers, distributors, and retailers here in the State and would love to assist you. For more information, email [email protected] or call (214) 295-5070. Ritter Spencer PLLC is conveniently located minutes from downtown Dallas.
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