Is Time Up for Hemp in Texas? Make Your Voice Heard Before April 22nd

Summary:

• The rules governing consumer hemp products are up for a routine review this year, which could lead to lasting changes in the state.
• Texas has opened up public comments until April 22^nd, 2024.
• Both businesses and ordinary consumers are encouraged to comment on how the laws have worked for them and places they could be improved.
• Email [email protected], with the subject line “Comments on Proposed Rule Review Chapter 300” to make your comments.

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Hemp has had a rough time in Texas. While the state passed its hemp law in 2019, a couple of years later, it declared that delta-8 THC was actually illegal in Texas and a legal battle begun.

Hometown Hero, the main hemp company opposing the move, made progress almost immediately and the delta-8 ban has basically been dead in the water since then despite continuing legal action.

However, the rules established through state hemp law are now up for re-assessment, which could lead to many changes for hemp in the state, or even just renew the law as it stands today.

The state has a period for comments from consumers and the industry, which closes on April 22^nd. Hometown Hero and state hemp advocates have issued a call to action for any Texans with an interest in this issue to submit a comment.

Here’s a run-down of what happened so far, what the review could mean for the hemp industry in Texas, and what industry stakeholders think.

Texas Hemp Law and the Delta-8 Debacle

While we’ve covered this in detail elsewhere, to really understand what’s at stake here you need a lightning recap of the twists and turns in the story of hemp in the Lone Star State.

RELATED: Texas Delta-8 Laws Explained

HB 1325 was signed into law on June 10^th, 2019 and administrative rules for consumable products took effect just over a year later. The bill forms the basis of current rules governing hemp in Texas, and is ultimately at the center of this story.

The rules are pretty much what you’d expect Farm Bill aligned hemp laws, although there is a legal requirement that consumer products are lab tested which puts Texas above many states in terms of consumer protection. In fact, ignoring the battle over delta-8 THC, the main objectionable things about Texas hemp law are the ban on the manufacture or processing of smokable hemp and the total lack of age restrictions.

However, delta-8 THC really threw all of this into chaos. Between August 2020 and May 2021, essentially unbeknownst to anybody, Texas altered the state’s Controlled Substances bill to change the definition of “marihuana extract.”

In May 2021, a representative from the Department of State Health Services (DSHS) stated publicly that they consider delta-8 THC to be a “marihuana extract,” but most companies selling delta-8 were unaware of this until the department updated their website in October 2021.

The legal challenges started immediately. Hometown Hero and other companies sued the state, hoping for a temporary restraining order (TRO) on the ban, and after an initial setback, a court granted an injunction against the state on November 8^th, 2021.

Ultimately, this is where the story remains today, against a backdrop of continued appeals, rejections, and hearings.

Public Comment Period About Texas Hemp Law – Until April 22^nd

There is a public comment period on the rules surrounding hemp in Texas until April 22^nd, and both hemp stores and consumers are strongly encouraged to comment.

Texas is specifically looking for comments on the rules governing consumer hemp products.

Texas law requires state agencies to assess a rule every four years, to determine if the reasons for adopting it still exist. Once the review process is complete, they can re-adopt the rule, make amendments, or repeal the rule entirely.

While HB 1325 was passed in 2019, the administrative rules governing consumable hemp products took effect in August 2020 (discussion and rules from PDF page 135-143), and so the review is taking place over the next few months.

We spoke to Cynthia Cabrera, Chief Strategy Officer at Hometown Hero, who pointed out that this review process doesn’t necessarily mean changes to the law:

“When they put out their announcement, they didn’t say they were intending to make any changes. And it’s also a procedural thing. Every regulatory agency has to review the rules that regulate an industry every four years.

So this is our four years. They didn’t say that they were planning to make any changes. I mean, that doesn’t matter. I guess you can say you’re not planning to make a change and then go make a change, you know. But they didn’t say that. So we’re hoping that it doesn’t.”

Who Should Comment? And What Should You Say?

Any hemp company in Texas should seriously consider submitting comments, for reasons that are hopefully obvious: these rules will likely govern your business for the next four years. If you have complaints, criticisms, or suggestions, this is your chance to air them.

Cynthia Cabrera echoed this point, “I hope that every hemp-related business in Texas submits comments.” Adding, “But the consumer perspective is important because for legislators, that’s their constituent base, right? So when you talk about having regulations, what you typically will hear is, ‘Oh, we need to ensure these products are safe for consumers. Oh, we need to ensure that they’re getting products that have been tested, that they’re safe.’ So, and that’s great. We’re fully in support of that.”

We asked Cynthia what consumers should mention in their comments, “The consumer angle would be, ‘Hey, we have been using these products that are tested. You know, this is the brand that we use and they have helped me because X, Y, Z.’”

Cynthia also emphasized what Texas got right with HB 1325, “The thing Texas did really well was that in 2019, when they issued their regulations, they immediately put in the testing. They talked about making sure that the tests were available to consumers and packaging and all that. So they did a really good job.”

As a consumer, you are both affected by this legislation and the people who these politicians depend on for votes, so making your voice heard is hugely valuable. If you depend on hemp products made possible by the rules as they stand today, let your legislators know how they help you and how the rules work for you (or don’t).

We asked Cynthia what Hometown Hero thinks of the current rules:

“Well, actually, I think Texas did a very good job for starters, because they immediately were like, OK, this is what you need for consumable hemp products. You know, you have to register the company and whatever, whether you’re a distributor, manufacturer, retailer, whatever. The only two things that are missing that I would strongly recommend.

There’s no age limit. I mean, we voluntarily age-gate at twenty one and over, but there’s no state age limit. And there was a bill floated last year to put in an age gate. That’s all it did. It just put in an age gate and it just got no traction whatsoever. And then the other thing would be child resistant packaging. We already use child resistant packaging because we just think it’s good business, but it’s not a state requirement.”

However, it must be said that there are likely limits to the amount of things they’re willing to change. The comments on the initial adoption of the rules (page 137) included 1,690 people complaining about the ban on smokeable hemp and just two in favor of it. As we know, the rule was kept in place.

We mentioned this to Cynthia, adding that it seems like a sign that the state won’t budge on some issues, and she agreed, adding “it’s kind of disheartening to say something like that. But I think it really is. It makes you wonder about the power of the will of the people. Allegedly, that’s what this country is built on.”

Is This the End of Intoxicating Hemp in Texas? Will Smokables Come Back?

Although lawmakers were ultimately unsuccessful in their attempt to “stealth ban” delta-8 THC, it’s possible that this review will result in a successful ban.

As many states across the country have grappled with this issue in the past few years, there are many approaches that are legally airtight and achieve the same goal.

We asked Cynthia Cabrera about this, in particular whether the state could change the rules so that no “consumable hemp product” could contain any synthetically-produced cannabinoids. She responded that:

“They could, but typically they have to show there has to be a reason for that. And this is our home state. So, and I know that other states have attempted or succeeded in doing stuff like that without any pushback from the rest of the industry in that state. But we would push back because again, what would be the rationale? You know, your aspirin, vitamin C, all kinds of supplements, all of those are made through the exact same process.”

On top of this, there’s also the question of whether there is enough appetite to do this in the state, especially since it would likely just extend the legal process. The reality is that despite some interest in passing new laws banning delta-8, legislators have been unsuccessful in these attempts so far.

On the other side, it’s possible that things move in the other direction. Because Texas can’t prevent interstate commerce in hemp (under the Farm Bill), they were only able to ban the processing and manufacturing of smokable hemp in Texas, not the products themselves. In practice, this means the ban isn’t hugely effective, and hemp organizations strongly oppose the current rules. We are certainly not holding our breath, but it’s possible that lawmakers accept the reality of the situation and back-track on this. 

Cynthia left us with a final comment that hits on the key disconnect between the views of politicians in Texas and the farmers and companies on the ground:

“I will say that it seems here in Texas, it seems like the legislators and policymakers have a disconnect between what farmers grow and what ends up in our products. So there’s this idea in Texas that the future of hemp is the hemp houses and hemp sidewalks and all that stuff. Which is great, but that’s not happening today. And what’s keeping hemp farmers in business are the finished goods like our products. And so there’s this disconnect where a lot of legislators seem to feel like they’re not connected and they are absolutely connected.”

Cynthia Cabrera, Chief Strategy Officer at Hometown Hero

Take Action: Email DSHS Before April 22^nd

The good news is that you have the opportunity to get involved in this process.

If you want to make your voice heard, you can email: [email protected], with the subject line “Comments on Proposed Rule Review Chapter 300.”

Discuss how the hemp program has helped you or your store, and if you have any specific comments regarding the laws, be sure to make your case.

RELATED: A State-by-State Guide to Delta-8 Laws in the U.S.