After establishing the Texas Compassionate Use Program in 2015 and augmenting it in 2019, Rep. Stephanie Klick (R) has once again initiated expanding the program with an incremental approach. With several beneficial provisions, this bill will potentially be the most effective and favorable legislation regarding medical marijuana reform in Texas. Although there are more comprehensive medical marijuana bills in other states, H.B. 1535 presents a significant opportunity for the Texas cannabis community.
In the 2020 elections, voters approved statewide ballot proposals to legalize medical and/or adult-recreational-use marijuana in Arizona, Montana, New Jersey, Mississippi, and South Dakota. In total, medical marijuana is now legal in 36 states and recreational use cannabis is now legal in 15 states. Currently, marijuana legalization remains on the docket for Texas in 2021. While many lawmakers have high expectations for this year, loosening marijuana laws has been a long and grueling battle for the Lone Star State.
On January 19, 2021, the United States Department of Agriculture (USDA) put forth a final rule to concretely establish a domestic hemp production program. This final rule becomes effective on March 22, 2021, and puts forth structured rules, regulations, and guidelines regarding the production of hemp nationwide. The USDA’s final rule is a provisional response to the Agriculture Improvement Act of 2018 (the 2018 Farm Bill), which permitted states and tribal nations to participate in hemp production programs and removed hemp from the Controlled Substances Act’s (CSA) definition of marijuana. Until the issuance of this final ruling, the USDA had previously only released an interim final rule, which was open to public comments and suggested revisions. Below, we break down the distinguishing and notable provisions the USDA incorporated into this new framework.
Although Texas has a medical marijuana program, as established by the Texas Compassionate Use Act in 2015, only three “Dispensing Organizations” have been granted licenses by the Texas Department of Safety (“DPS”) to cultivate, process, and dispense low-THC cannabis (up to a 0.5 percent THC limit as of the date of this blog) in Texas to prescribed patients. See 37 Tex. Admin. Code § 12.1. Texas is a vertically integrated state, meaning that the Dispensing Organization must cultivate, process, package, and dispense the medical marijuana.
In 2015, the Texas Compassionate Use Act, Senate Bill 339, was enacted, requiring the Texas Department of Public Safety (“DPS”) to create a secure registry for qualified physicians to treat patients suffering from a limited list of medical conditions, such as ALS and intractable epilepsy, with low-THC cannabis. In 2019, the Texas Legislature expanded the Texas Compassionate Use Program (“TCUP”) via House Bill 3703 to include additional medical conditions, e.g., incurable neurodegenerative diseases, and physician specialties in which low-THC cannabis can be prescribed. Moreover, the Compassionate Use Registry of Texas (“CURT”) has been updated in accordance with the expanded TCUP to allow for a simpler process for physicians to register and prescribe low-THC cannabis to their patients.
In June of 2019, the state of Texas passed HB 1325, which, in part, authorizes and directs the Texas Department of State Health Services (“DSHS”) to enact rules regarding the processing and manufacturing of smokable hemp products. See Tex. Health & Safety Code § 443.204(4). In August of 2020, DSHS banned the processing, manufacturing, distribution, and retail sale of smokable hemp products throughout the state of Texas. See Tex. Admin. Code § 300.104. With its excessive regulations, DSHS essentially stifled the smokable hemp market in Texas, forcing existing companies, such as Crown Distributing LLC (“Crown”), to move their businesses out of state.
The Agricultural Improvement Act of 2018 (the “2018 Farm Bill”) established that hemp is to be treated similarly to other legal agricultural commodities and traded in standard interstate commerce as a raw material. However, the 2018 Farm Bill governs only state production programs and specifically permits states to enact more stringent regulations than those contained in the Bill. As a result, legal hemp has facilitated the emergence of a wide array of consumer products and uses. Specifically, smokable hemp has made a significant presence in the cannabis and hemp markets and continues to grow despite the increasing legality of other forms of cannabis that often include higher concentrations of tetrahydrocannabinol (“THC”). Below, we discuss the smokable hemp industry and the legal challenges it faces as it comes to fruition.
As different cannabinoids begin to gain recognition in the hemp and marijuana industries, it is crucial to discuss the legal considerations and challenges facing manufacturers, producers, retailers, and other cannabis-based businesses. In such a new space, promising cannabinoids have the potential to make a significant impact on the market. One of the cannabinoids gaining notable traction is known as cannabinol (“CBN”). Today on the blog, we review its legal status.
Yesterday, our office filed a lawsuit against the Texas Department of State Health Services (“DSHS”) on behalf of our client, Crown Distributing LLC (“Crown”), challenging the smokable hemp bans in Texas. A copy of our filed Petition can be accessed here.
The Texas Department of State Health Services (“DSHS”) adopted and published its final rules governing the Texas consumable hemp program (the “DSHS Final Rules”) to the Texas Register. The DSHS Final Rules become effective on August 2, 2020. Any potential changes to the statute governing our hemp program will not occur until the Texas Legislature reconvenes in January of 2021.
To the detriment of many in the Texas hemp industry, the DSHS Final Rules only slightly diverge from the DSHS Proposed Rules. Our prior blog series on the DSHS Proposed Rules provided an in-depth analysis of the proposed DSHS rules. This blog focuses on the changes made by DSHS in the adopted Final Rules.