Texans seeking the benefits of cannabis today are not able to access what’s usually found at cannabis dispensaries across the country, as the state’s limited medical cannabis program allows only for products with .5% THC or less. But the passage of a Texas hemp legalization bill in 2019 has opened the door to wide availability of regulated CBD products, with mixed implications for the medical cannabis program—and patients.
In a state known for its highly conservative stance on cannabis—and as a huge potential market—new rules are blurring the lines between CBD products meant for patients as opposed to general consumers.
Some background: in 2015, Texas’ Compassionate Use Program made medical cannabis products available to patients in the form of tinctures or oils derived from plants with .5 percent THC or lower, but abundant in CBD. The program is administered by the Texas Department of Public Safety, a notable choice considering that most states situate their medical cannabis programs under their health departments.
Then, in October of 2019, about a week after the application process for medical cannabis dispensaries opened, the Department abruptly ended the application process, leaving only three entities licensed, though the Department has leeway to license more. Since then, groups like Texans for Responsible Marijuana Policy have called for the expansion of the Compassionate Use Program, but little progress has been made.
Indeed, as the department’s communication office wrote in a June 30 email to Cannabis Wire, “the department continues to assess dispensing capacity requirements, along with the needs for any additional licenses in the program. At this time, the department does not have plans to add additional licenses.”
A twist: In 2019, the Texas House passed Bill 1325, which created a Hemp Program to oversee the production and sale of industrial hemp and hemp products in Texas. This includes CBD, which, of course, can be derived from both what is known as hemp and what is known as marijuana, as both are of the genus Cannabis. Ultimately, the extracted CBD is the same, which raises the question: How will the CBD that becomes widely available through the new Hemp Program differ from the CBD that is available in limited quantities in the minuscule medical cannabis program?
The only difference between these CBD products and the ones available to medical cannabis patients is that CBD products available through the Hemp Program will be limited to .3% THC and will be produced from cannabis plants with .3% THC or less, versus .5%. (The legal definition of hemp in the US is cannabis with .3% THC or less.)
Heather Fazio, Director of Texans for Responsible Marijuana Policy, says Texans come to her in confusion when it comes to the new hemp rules. “They’re like, ‘Am I reading this right? This seems silly. What’s going on here?’”
Further complicating the picture in Texas is that, as is the case across the country, unregulated CBD products are widely available. When the 2018 Farm Bill legalized hemp at the federal level, the task of determining which CBD products are legal, and how best to regulate them, fell under the purview of the US Food and Drug Administration. The FDA has yet to finish its deliberations, but nonetheless, unregulated CBD products can be found on shelves from coast to coast. Several states, like Texas, are tackling that question in the meantime.
“There’s a lot of confusion that exists between what our product is and what someone might be able to buy at a farmers market or at a gas station or, you know, on the shelf of their local grocery store,” said Morris Denton, the CEO of Compassionate Cultivation, a medical cannabis licensee in the state, adding that his CBD product differs in quality, consistency, and concentration of THC from over-the-counter CBD. “There’s a lot of stuff out there and it’s just really sort of crappy snake oil. And unfortunately that gives a black eye to the quality producers, and there are plenty of them that are out there.”
Denton has the only Texas-based medical cannabis licensee of the existing three. The other two are the Florida-based Cansortium, operating under the brand Fluent (formerly Knox Medical), and Surterra, which recently rebranded as Parallel and is based in Georgia but operates in several states. These three Compassionate Use Program licensees are, for now, the only ones legally allowed to distribute CBD in a state of 29 million people, and only for certain medical conditions.
But, in another twist: the Texas Department of State Health Services finally proposed a regulatory framework in early May to go with the Hemp Program, and will license retailers and producers of “consumable hemp products.” The rules were presented online in a virtual meeting to the Health and Human Services Commission Executive Council on June 25, were published in the Texas Register (the state’s weekly state agency rulemaking publication) July 24, and went into effect August 2.
So what does this mean for medical dispensaries, now that prospective patients could just buy a similar—and, now, state-approved—product with no bureaucratic hoops to jump through?
The Texas Department of Public Safety says the hemp program won’t overlap with the medical one. The department wrote to Cannabis Wire that the state program brought about by the 2018 Farm Bill “specifically deals with CBD products that have a THC content of 0.3% or lower. In comparison, the Compassionate Use Program… regulates products with a THC content between 0.3-0.5%. Therefore, we are not anticipating any issues or changes.”
Denton agrees. He said what he dispenses is not the same as what you could buy at your local health food store, especially without regulations, but that he welcomes the prospect of rules to license over-the-counter products. “I hope that with the implementation of these rules, that the state agencies will actually start enforcing the rules,” he added. “So let’s see if they enforce the rules. That would be a great thing.”
For now, Texans for Responsible Marijuana Policy is focusing its energy on advocating for the expansion of the Compassionate Use Act’s qualifying conditions—to include PTSD, chronic pain, and Crohn’s disease, among others—and removing the THC cap.
