AUSTIN — A burgeoning industry of gummies, edibles and other consumables made with hemp-derived tetrahydrocannabinol — or THC, the psychoactive ingredient in marijuana – is near death in Texas after a blanket ban on the low-dose products cleared one of its last big legislative hurdles Wednesday.
In a move championed by Lt. Gov. Dan Patrick, the Texas House voted 95-44 to criminalize the possession, sale and manufacture of the products sold by more than 8,500 license holders in vape stores, coffee shops, convenience stores and other venues across the state.
The Senate passed the ban in March. The bill will get a final vote in the House on Thursday and is expected to pass.
The proposed ban carves out an exemption for non-intoxicating hemp products that don’t include THC, such as the popular cannabidiol (CBD), which has been approved by federal regulators to treat some conditions.
But it shuts down the popular THCA and delta-8 consumables that have turned into an $8 billion industry in Texas in the last five years.
The vote came after nearly three hours of debate over whether to create a regulated market with hemp shops peddling Texas-grown flower and products. Ultimately, the ban won out.
“We are not banning hemp,” said Rep. Tom Oliverson, R-Cypress, who chairs the House Republican Caucus and who carried the prohibition language in the House. “We are banning high. If it gets you high, it is not legal anymore” under this legislation.
Democrats, who included proponents of marijuana legalization as well as at least one veteran, tried several times to kill the ban, arguing that it will have the opposite effect supporters want if lawmakers don’t put common-sense regulations in place now.
“Bans don’t work,” said Rep. Rafael Anchia, D-Dallas. “We’ll return to a completely unregulated black market where these products will find their way to young people today. If anybody’s to blame about the state of affairs, it’s us, in underregulating this marketplace.”
The fight has raged in Texas since low-potency hemp and hemp products, containing less than .03% delta-9 THC, was legalized through a federal loophole in 2019 in order to boost agricultural production.
The products were not cut out of the bill, but not regulated, either – resulting in massive growth of the industry without guardrails to protect both consumers and sellers.
The vote comes as a recent report by a governor’s forensics commission questioned the reliability of some state lab tests on the THC levels in hemp-based products — the basis for several raids on hemp shops and one of the core arguments in favor of a ban on them.
Patrick has been on the warpath against the retailers, with the Senate backing a full ban early in the session as one of the Houston Republican’s priorities for the session. During his crusade, Patrick visited vape shops hoping to find underage customers and vowed to accept nothing less than a total ban.
On Monday, Patrick released an 8-minute video of footage from the bipartisan Senate floor vote and related hearings. In it, Patrick vowed not to leave Austin until a ban is passed.
Wednesday’s floor vote on Senate Bill 3, by Sen. Charles Perry, R-Lubbock, was among the more highly anticipated debates of the session after hundreds showed up for committee hearings that lasted into the early morning hours to debate the merits and risks of low-dose THC.
It also came less than a month after law enforcement seized nearly $5 million in cash, as well as vehicles, jewelry and firearms after an investigation into a chain of North Texas shops in Dallas and Kaufman counties.
Thegovernor-appointed commission charged with investigating accredited forensic laboratories for professional negligence or misconduct published its report in April. It found that some labs test vapes confiscated from customers or retailers using methods that can falsely inflate the amount of THC found in the products.
An emailed request for comment to Texas Department of Public Safety media officers was not returned this week.
Attorneys for the shop owners have said the businesses operated legally.
Ban vs. regulate
Under legislation advanced on Wednesday, possession of the products would be a Class A misdemeanor, punishable by up to a year in jail and a fine of up to $4,000. Manufacturing them would be a third-degree felony, punishable by 2 to 10 years in prison and a fine of up to $10,000.
Retailers would have until January to comply with the new law, which would not target the sale of the products containing cannabidiol (CBD) or cannabigerol (CBG), two nonintoxicating hemp derivatives.
It would ban anything other than CBG and CBD. That includes all other consumable hemp products, such as cannabinol (CBN), which is also nonintoxicating and popular for uses such as sleep aids and anxiety.
CBD is federally approved for treating a form of childhood epilepsy, and medical evidence suggests it could treat anxiety disorders, pain, insomnia and possibly inflammation.
Supporters of the ban call the current market of THCA and other intoxicating hemp products a dangerous, pseudo-legal, cottage industry that targets kids, has no reliable testing or dosing, and no medical oversight.
Veterans, and anyone needing medical help, have much better options, said Rep. David Lowe, R-North Richland Hills, a veteran who said he has suffered from post-traumatic stress syndrome.
“Let me be clear, there are benefits to hemp products for some individuals,” Lowe said. “But as someone who has lived through the darkness onward and its aftermath, I say sincerely, stop using veterans like me as a vehicle to push your unregulated influence. There’s a difference between passion and exploitation.”
THC should only be legal in Texas for those who need it for medical reasons, supporters said. The state’s Compassionate Use Program is administered through health professionals to those who qualify.
The supporters say the retailers sell products that are often illegally high in THC and accuse them of selling to minors. Advocates for the ban included parents who described to lawmakers how their children suffered psychosis after consuming synthetic THC products.
Oliverson and other Republicans say the key to helping those who need THC for pain management and other conditions is expanding access to medical marijuana.
Last week, the Texas House voted to make the program broadly available to veterans, doubling the number of conditions that qualify for it and raising the number of dispensaries from three to 15.
That bill still faces an uphill battle in the Senate — which passed its own, much smaller medical marijuana bill that increased the number of dispensaries and made it easier for them to stay in business, but didn’t expand the program to include more people.
“I want people to have access to medications that help them when they have medical conditions, where those medications can be a benefit,” Oliverson said. “But what we’re doing here is correcting a problem that was created in 2019 where we created a pathway whereby people could sell drugs in corner stores across our state.”
Opponents said that prohibition would be a disappointing overreach that defies Texas’ pro-business values and allows residents access to life-changing products. They urge lawmakers to avoid killing an industry that has created about 50,000 jobs, according to market research.
With the proper regulations, Texas residents, veterans and farmers should continue to access the low-dose products while addressing the concerns about safety and age limits by regulating the industry – not destroying it, Wu said.
Rep. Ron Reynolds, D-Dallas, said the “reckless ban” pushed by Patrick would cost Texans $1.6 billion in wages and $20 million in sales taxes, restrict personal freedom and “ignore the will of the majority of Texans.”
“We know that the hemp industry, like many others, can have its share of bad actors. That’s why proper testing, legally, and consumer protections are critical,” Reynolds said. “Texas can and should create a legal framework that allows the sellers of these products while ensuring safety, transparency and quality control.”
Last-ditch effort to save the industry
House leaders made a last-ditch effort to save the industry and put forth a plan to curtail and regulate the retailers.
The legislation by Rep. Ken King, R-Canadian, proposed reducing the state’s consumables market to edibles and non-synthetic, smokable low-dose flower buds made only from hemp grown only in Texas — the market that was initially supposed to benefit from the 2019 farm bill.
The effort failed 53-86.
Under the regulation plan, counties could have opted out and elected to go entirely “dry” with no hemp sales at all through elections similar to those allowed for alcohol sales, and the entire program would be moved from state health officials’ purview and placed under the direction of the Texas Alcoholic Beverage Commission.
The bill would have banned shops from selling to anyone under 21 or setting up retailers within 300 feet of a school, church or public playground.
The House version of the bill could still have wiped out half of the value of products on the market today. But it stopped short of killing the industry altogether, allowing hemp specialty stores but banning the products from being sold in gas stations and vape shops.
The bill would still have banned vapes and all other forms of smokable hemp except low-dose Texas hemp flower — not high enough to be psychoactive.
Under the proposal the specialty hemp stores could have sold tinctures and edibles, including gummies and drinks, manufactured in Texas. The bill would have banned sales to customers under 21, requires child-resistant packaging, prohibits packaging that markets to children and includes other testing and regulatory requirements.
Taxes would have been split between the TABC, accredited crime labs and opioid narcotic response services by law enforcement.
The 2019 loophole
Hemp and marijuana plants are varieties of cannabis. In Texas, products containing THC from marijuana are illegal except for the medical program.
Most THC products derived from hemp plants, however, are legal because of a 2019 state law that allows the farming and commercialization of hemp with trace amounts of THC.
Because the law was written for farmers, not retailers, it did not offer the restrictions present in other states’ consumable hemp programs, including strict third-party testing requirements and age limits on purchases.
The legislation limited the amount of delta-9 THC in hemp plants and products to no more than 0.3% by weight but did not place limits for any other hemp derivatives.
The law removed hemp from the state’s Controlled Substances Act, effectively legalizing all of its derivatives without potency limits on most of them.
In 2023, some lawmakers attempted to ban intoxicating hemp-based products but were unsuccessful.
