Is CBD Legal? Part III: Texas Law

If you live in Texas, you have probably noticed some of the recent news segments and articles regarding the question of whether CBD is legal in Texas. Currently, there are several Texas counties that are actively raiding stores selling CBD goods and seizing those goods. Others are charging and prosecuting end-users of CBD products. On every news article or social media posting referencing these enforcement activities, you will quickly identify several people boldly instructing everyone that “hemp is legal in all fifty states,” that “Texas is wrong because the Farm Bill legalized hemp everywhere,” or worse, urging others to sue the state of Texas for enforcing its criminal laws. We’re here to clear the air and to answer the pressing question of whether CBD is legal in Texas. Forewarning, this is not going to be a short article; however, if you can stick it out until the end, you will have a great understanding of the law here in Texas and how that law interacts with federal laws on hemp.

Medicinal Low-THC, High-CBD

Texas has one of the most limited and restrictive medicinal marijuana statutes in the entire nation: the Texas Compassionate Use Act (Tex. Health & Safety Code § 487). Texas permits qualifying patients to receive recommendations for “low-THC cannabis,” often in the form of cannabidiol oil. Low THC cannabis is defined under the Compassionate Use Act as:

the plant Cannabis sativa L., and any part of that plant or any compound, manufacture, salt, derivative, mixture, preparation, resin, or oil of that plant that contains:

(A) not more than 0.5 percent by weight of tetrahydrocannabinols; and

(B) not less than 10 percent by weight of cannabidiol.

Tex. Occ. Code § 169. Currently, the sole qualifying condition for which a low-THC cannabis recommendation may be made in Texas is intractable epilepsy. To qualify for a recommendation, the patient must be a permanent 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. Qualified doctors 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 and must apply and subsequently register with the Compassionate Use Registry of Texas. With a valid recommendation, qualifying patients can possess CBD with up to .5% THC.

Non-Medicinal CBD

Now to the nitty-gritty that you are probably here for: is non-medicinal CBD legal in Texas. According to Texas statutes, no. Let’s start with the definition of what the State of Texas considers “marijuana.”

“Marihuana” means the plant Cannabis sativa L., whether growing or not, the seeds of that plant, and every compound, manufacture, salt, derivative, mixture, or preparation of that plant or its seeds. The term does not include:

(A) the resin extracted from a part of the plant or a compound, manufacture, salt, derivative, mixture, or preparation of the resin;

(B) the mature stalks of the plant or fiber produced from the stalks;

(C) oil or cake made from the seeds of the plant;

(D) a compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, fiber, oil, or cake; or

(E) the sterilized seeds of the plant that are incapable of beginning germination.

Tex. Health & Safety Code Ann. § 481.002. Hemp is always the sub-species Cannabis sativa L. Thus, under our current statute, hemp falls under the definition of marijuana. Extracts derived from hemp, including CBD, qualify as marijuana unless they are sourced from the exempted portions of the Cannabis sativa L. plant identified in (A)-(E) above.

That’s not the end of our prohibitions, though. THC is currently scheduled here in Texas. Not just any THC, THC derived from where? The entire Cannabis genus. “Tetrahydrocannabinols;

meaning tetrahydrocannabinols naturally contained in a plant of the genus Cannabis..”

Tex. Health & Safety Code Ann. § 481.032 (34). Interestingly, this definition encompasses all known subspecies: indica, ruderalis, and sativa.

So where does that leave us? Under Texas statutes, hemp is marijuana (an illegal substance) and any amount of THC from hemp is illegal. Therefore, CBD is illegal in Texas.

So Why Can I Find CBD Being Sold Everywhere?

Two words: enforcement priorities. Most small or mid-size police departments do not have general counsel on staff to sort the law out for them and they also have bigger fish to fry (for the most part). Initially, DPS appeared poised to enforce our current criminal prohibitions on CBD legality when they raided People’s Pharmacy in Austin, Texas in 2016. Testing results on the seized products showed no THC after laboratory analysis. Despite the fact that the product could have been considered to contain “marijuana” under our current statutory definitions, the products were returned when the non-detectable THC results came back. Afterwards, DPS’ General Counsel Phillip Adkins Hemphill publicly stated, “Since January of 2016, we are aware of seven known conflicts with law enforcement. Fortunately none have resulted in a conviction. Ambiguity in the law related to the status of CBD under the TCSA has caused general confusion, unnecessary expenditures by law enforcement, legal expenses and untold stress to innocent consumers and businesses.” DPS has not actively raided since the release of this statement.

Some smaller departments may be pursuing enforcement activities as a potential revenue stream, but for the most part, CBD prosecutions are not high priorities for departments. For those who do announce intentions to prosecute, the departments face massive pushback from the public. Take Tarrant County for example. The Tarrant County District Attorney’s Office recently announced an intention to prosecute possession of CBD with non-detectable THC because it is illegal under Texas law. Almost immediately, a public outcry arose. Large national lobbying organizations and industry associations wrote letters and contacted the department. Within a few days, the DA’s office released statistics on enforcement and stated this was not going to be high priority for them.

Many localities permit retail shops to sell CBD as long as it contains no-detectable amount of THC. Other localities have shops that are selling .3% THC products without interference. Enforcement here in Texas is very county specific. So are you going to be prosecuted if you buy one of those products? It depends. Just know that if they want to prosecute you, the law in Texas is not on your side.

What about the Supremacy Clause?

You may be asking if the 2018 Farm Bill supersedes state law under the Supremacy Clause and establishes that CBD is legal in Texas. The Supremacy Clause in our Constitution provides that, “[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof … shall be the supreme Law of the Land. Sounds simple, right? Many people are under the mistaken assumption that Supremacy Clause means that federal law trumps all and that it will always defeat state law. This not true: the Tenth Amendment to the Constitution reserves to the States “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it…”

Before we jump into dissecting those clauses, we have a disclaimer for you: There is an entire body of case law spanning over two hundred years reviewing the tension between the Supremacy Clause and the Tenth Amendment and adjudicating which prevails under the doctrine of preemption. This is a subject area that many noted legal scholars disagree on and a difficult area of law in which to make predictions. It is an incredibly complex area of law and to sufficiently cover it would require much more than the article summation provided here. However, we will do our best to provide you with a foundational understanding of why the Supremacy clause doesn’t always trump state law and why it likely won’t impact the Texas laws discussed above.

What is Preemption?

The doctrine of preemption is founded in the Supremacy Clause. What is the doctrine of preemption? Generally, where federal law conflicts with state law, federal law prevails. This is probably what you were taught in school. However, as with most things in law, there are exceptions. What are the exceptions? To provide another favorite response of the legal world, “it depends.”

Congress operates through three types of preemption: express, conflict (implied), and field (implied). Express is simple: Congress places a clause into the statute stating it preempts state law or regulates in an area expressly reserved for federal law. Implied preemption can be a bit trickier: it applies where there is evidence that Congress intended to supersede state law in that particular field (field preemption) or where there is conflict with state law (conflict preemption). Conflict preemption is applied where compliance with both the federal law and state law is a “physical impossibility … or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Gade v. National Solid Waste Management Assn., 505 U.S. 88, 98 (1992) (identifying both impossibility preemption and obstacle preemption). Remember this language, we will come back to it when we talk about the Controlled Substances Act (“CSA”). Conflict preemption is easily the most complex of the preemption areas.

What can Congress Regulate Under the Supremacy Clause?

Congress has the ability due to the Commerce Clause in our Constitution, which provides that Congress has the power “to regulate commerce with foreign nations, and among the several states…” The Supreme Court has recognized that Congress has “the power to regulate purely local activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate commerce.” See Wickard v. Filburn, 545 U.S. 1 (2005). This means Congress can regulate an activity that occurs in a state if it has a substantial effect on interstate commerce. For example, in Raich v. Gonzalez, the Supreme Court found that Congress can criminalize the production and use of homegrown cannabis, even if state law allows it for medicinal purposes. 545 U.S. 1 (2005). Why? Because marijuana is illegal federally. Doesn’t that conflict, you ask? No. Most courts have found that you can simply not grow cannabis and avoid the conflict. However, one interesting fact here is that Raich was decided before the Obama administration announced that it was not interested in pursuing the conflict between federal and state medicinal law. If this case had occurred after that, it may have been decided differently.

What Can’t Congress Regulate under the Supremacy Clause?

Criminal laws fall under the concept of dual sovereignty: both the United States and the States individually have the right to enact governing legislation for criminal prohibitions. This is certainly subject to limitation. For example, a state can’t pass a law immunizing its citizens from federal criminal prosecution.

However, dual sovereignty is a very important concept here: the federal government isn’t the end all, be all. Each state is its own sovereignty and the federal government often can’t force a state sovereignty to act. For example, Congress cannot commandeer state police officers to enforce federal law. See Printz v. United States, 521 U.S. 898 (1997). Nor can it commandeer state legislatures by mandating that states enact certain legislation or implement federal law. New York v. United States, 505 U.S. 144 (1992). Congress is often similarly limited in its ability to compel a state to enact criminal law. For example, Congress cannot likely force medicinal use states to repeal their medicinal use programs and pass a statute recriminalizing marijuana. Nor can Congress direct state police to enforce the marijuana provisions of the CSA.

Does the CSA Trump State Law?

If you made the logical leap to mull over the fact that the 2018 Farm Bill amended the CSA to exclude hemp, you are exactly right. However, that does not matter for preemption purposes. We know that Congress did not intend for the CSA to trump state law because it stated its intention in the CSA. See 21 U.S.C. §903 (“No provision of this subchapter shall be construed as indicating an intent on the part of the Congress to occupy the field in which that provision operates, including criminal penalties, to the exclusion of any State law on the same subject matter which would otherwise be within the authority of the State, unless there is a positive conflict between that provision of this subchapter and that State law so that the two cannot consistently stand together.”). Thus, the only way the CSA prevails is if there is a positive conflict with a State law that prevents the two laws from coexisting.

After reading the CSA’s preemption clause, you may be confident that the 2018 Farm Bill cannot consistently stand together with the current Texas law classifying Cannabis sativa L. as marijuana and outlawing THC derived from hemp. However, if you read the first article in this series, you may now be thinking of one thing: the right of the states to regulate their own hemp programs. The 2018 Farm Bill contains its own instruction on preemption. The Bill provides that nothing contained therein “preempts or limits any law of a State or Indian tribe that (i) regulates the production of hemp; and (ii) is more stringent than [the 2018 Farm Bill].” Thus, states can include more stringent regulations for their hemp growth programs than the Bill contains.

Is Texas regulating hemp? Yes, it outlaws growth and sale of the substance and state law provides that CBD is illegal in Texas. Is this more stringent than the Farm Bill? Yes. Can they do it? Certainly. Does a state prosecution make it “physically impossible” for you to comply with federal law? No. Like marijuana, you could simply choose to not use the substance. Does a state prosecution “stand as an obstacle to the accomplishment and execution of the full purposes of and objectives of Congress?” See, e.g., Emerald Steel Fabricators, Inc., v. Bureau of Labor and Industries, 348 Ore. 159 (2010) No. Why not? Conflict preemption applies only if the purpose of the Bill cannot be accomplished otherwise. We know Congress did not intend to override the right of the states to elect to participate, or to not participate, in a hemp growth plan. We also know that Congress specifically provided that states were free to impose stricter regulations. Last, we know that Congress never intended for the CSA provisions to override state law unless the two cannot consistently stand together. Under the doctrine of preemption and the concept of dual sovereignty, it is very unlikely that federal will prevail here. Congress simply cannot force Texas to enact criminal legislation or force state police officers to enforce federal law.

One novel and untested defense may be that if the hemp-derivative product was sourced properly under the 2018 Farm Bill and transported into Texas, that the Farm Bill’s anti-interference provision may preempt state law. Recall that the 2018 Farm Bill included a provision instructing that “No State or Indian Tribe shall prohibit the transportation or shipment of hemp or hemp products produced in accordance with subtitle G of the Agricultural Marketing Act of 1946 (as added by section 10113) through the State or the territory of the Indian Tribe, as applicable.” Thus, if a driver buys a hemp derivative in a state in which that product is legal and is charged in Texas, there may a defense under the anti-interference clause. However, this defense is untested in the Texas court system. If the Legislature passes legislation to fix the legal status of hemp and hemp-derivatives in Texas during session, we likely will never know the answer to this. Any new law passed this session will go into effect September 1, 2019.

How Can This be Fixed?

We may sound like a broken record by this time, but if we’ve said it once, we’ve said it twice, and will say it again today: contact your state representatives. This is an important issue in the state of Texas right now. The Texas legislature only meets every two years so if this issue is not fixed in this current legislative session (which ends in May), we are out of luck for two more years.

We hope that you have enjoyed this series on CBD legality and that the information has been useful for you.

Ritter SpencerIs CBD Legal? Part III: Texas Law

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