[[{“value”:”
Hemp advocates are surely still nursing sore throats (and the effects of whatever else they used to celebrate) after singing “God Blessed Texas” this past weekend. Moments before a bill that would essentially ban all consumable THC products in Texas was due to become law, Gov. Greg Abbott vetoed the would-be law. He proposed instead a robust regulatory regime governing consumable hemp products. In doing so, did he pave a pathway for saving the hemp industry in America, and – perhaps more significantly – did the second largest and second most diverse state in the union (the Republic of Texas) show Congress a way to pass a new Farm Bill? Join me in a discussion, if you will.
What Was the Proposed Law?
consumable hemp products would only be allowed to contain cannabidiol (CBD) and cannabigerol (CBG). This means that products containing delta-8 THC, delta-9 THC, and other cannabinoids that have become popular in recent years would have effectively been banned.
The bill explicitly provided that hemp-derived products could not contain any amount of a cannabinoid other than CBD or CBG, which supporters said would close a “loophole” that many businesses have used to sell products with psychoactive effects.
If enacted, SB3 would have forced many retailers to pull their most profitable items from the shelves, affecting consumers who rely on these cannabinoids for relaxation, pain relief, or other medicinal purposes. And it would have of course decimated consumable hemp manufacturers in Texas and those who relied on the sizable Texas market for sales.
Critics argued that this provision could push consumers toward the unregulated black market, where there is less oversight of product safety and quality. They also argued that the bill would costs tens of thousands of Texan jobs.
Texas Hemp Program Given Last Minute Stay of Execution
SB3 was to become law at midnight on June 22 unless Abbott affirmatively vetoed it. That meant that the bill could become law if the governor signed it or if he simply took no action. I, like many, assumed the governor would take what I perceived to be the most politically expedient route by simply not acting on the bill and allowing it to become law, thereby permitting him to credibly deny that he had either signed or vetoed this politically charged legislation.
I was shocked when I began seeing posts on social media shortly before midnight on June 22 that Abbott had vetoed the bill. As discussed above, I knew there had been extensive lobbying by the hemp industry for a veto, but I doubted that a Republican governor of Texas would veto a law passed by the Republican-led legislature. But here we are.
Stated Priorities for Hemp Reform in Special Session
Abbott issued the following statement accompanying the veto (in relevant part):
Senate Bill 3 is well-intentioned. But it would never go into effect because of valid constitutional challenges. Litigation challenging the bill has already been filed, and the legal defects in the bill are undeniable.
If I were to allow Senate Bill 3 to become law, its enforcement would be enjoined for years, leaving existing abuses unaddressed. Texas cannot afford to wait.
What is the legal problem with Senate Bill 3? As passed, it would prohibit anyone from manufacturing, distributing, or possessing consumable hemp products that contain “any amount of a cannabinoid other than” CBD or CBG—regardless of whether those products fall under the federally-mandated THC threshold. It therefore criminalizes what Congress expressly legalized and puts federal and state law on a collision course: Today, federal law promises Texas farmers that they may grow hemp without fear of criminal liability. But under Senate Bill 3, the seeds used to grow those plants are “consumable products” —currently available in stores—and they naturally contain cannabinoids. What’s a Texas farmer to do? Trust the federal government’s promise, or fear criminal liability from the State?
Allowing Senate Bill 3 to become law-knowing that it faces a lengthy battle that will render it dead on arrival in court—would hinder rather than help us solve the public safety issues this bill seeks to contain.
That is why I am vetoing Senate Bill 3 and calling a Special Legislative Session in July to craft a law that does as much as possible to corral the problems while also being structured so that it can go into effect this year.
Abbot then listed a series of “potential regulations” that the Legislature should consider in special session:
Selling or providing a THC product to a minor must be punishable as a crime;
Sales must be prohibited near schools, churches, parks, playgrounds, and other areas frequented by children;
Packaging must be child-resistant, tamper-evident, and resealable;
Products must not be made, packaged, or marketed in a manner attractive to children;
Any store selling these products must have a permit and restrict access to anyone under the age of 21, with strict penalties for any retailer that fails to comply;
Products containing THC may not contain other psychoactive substances (e.g., alcohol, tobacco, kratom);
Testing must be required at every phase of production and manufacturing, including for both plants and derivative consumable products;
Manufacturing and processing facilities must be subject to permitting and food safety rules;
Permit and registration fees must suffice to support robust enforcement and testing by the Texas Alcoholic Beverage Commission, in partnership with other state agencies;
An operator’s permit and warning/danger signs must be posted at any store selling these products;
Sales must be limited to the hours between 10 a.m. and 9 p.m., and prohibited on Sundays;
The amount of THC permissible in each product must be restricted and an individual may make only a limited number of purchases in a given period of time;
Labels must include a surgeon general-style warning, a clear disclosure of all ingredients, including the THC content, and a scannable barcode or QR code linking to test results;
Fraudulently creating or displaying manifests or lab results must be punishable as felony offenses;
Public consumption, consumption on the premises of any store that sells these products, and possession of an open container in a vehicle must be punishable as crimes;
The attorney general, district attorneys, and county attorneys must have authority to pursue violations under the Deceptive Trade Practices Act;
Local governments must have the option to prohibit or limit stores selling these products;
Excise taxes must be assessed on these products to fund oversight and enforcement; and
Additional funding must be provided to ensure law enforcement have sufficient resources to vigorously enforce restrictions.
Momentum Recently Swings Towards Hemp at State Level
After significant setbacks during several legislative sessions in statehouses throughout the country earlier this year, Abbott’s veto is in line with the successful defeat of hemp prohibition-like provisions proposed in Georgia, Florida, and Delaware in recent weeks.
Is this a trend or a coincidence? Perhaps it’s too soon to tell, but hemp advocates have reason to feel some sense of relief emerging from this year’s legislative sessions in light of how things appeared just a few months ago.
Is Texas a Test Case for Congress’ Farm Bill Debate?
So now we come to the question that prompted me to write in the first place: Does the outcome of hemp reform in Texas provide any clue as to how Congress will approach the upcoming Farm Bill?
“As goes Texas, so goes the rest of the country.” That is a quote I just made up and probably doesn’t apply in all that many circumstances. But in this case, and with this specific issue, I think there may be something to it. Texas is the second largest and second most diverse state in the union. It has deep red areas and some of the bluest of the blue areas in huge metropolitan areas, and it can probably best be characterized as whatever color falls between light red and purple.
I don’t agree with all of Abbott’s considerations, but I think he’s generally asking the right questions that should shape the hemp debate not only in Texas and in other states, but at the federal level as well. I think Congress would be well served to examine what happened in Texas over the past few months and focus its efforts on how to craft a thoughtful, nuanced hemp policy to guide us over the next three to five years. Our citizens deserve that over the simplistic jingoism of politicians who would simply ban consumable hemp products en masse or allow hemp to remain unregulated and at a competitive advantage over state-licensed marijuana operators.
Conclusion
So, what have we learned from all of this? Yogi Berra was onto something when he said “it ain’t over ‘til it’s over.” But there should be a better way of doing things. The debates over cannabis reform shouldn’t always have to lead to brinksmanship and trying to push reasonable people into one extreme camp or the other. The issue of how our country will police cannabis, and hemp in particular, is greatly consequential. At its best, hemp has the ability to develop better and more responsible industrial products and to provide therapeutic benefits to certain populations. At it’s worst, it has the ability to harm our most vulnerable populations. I suggest that rather than choosing one of those two extremes, we can come together to deliberate how to best allow this product to benefit the most Americans while providing assurances that it will not be used as a force for bad. Here’s to hoping that members of Congress see what is happening in Texas and choose that middle, responsible path.
Listen to this post
“}]] Hemp advocates are surely still nursing sore throats (and the effects of whatever else they used to celebrate) after singing “God Blessed Texas” this past weekend. Moments before a bill that would essentially ban all consumable THC products in Texas was due to become law, Gov. Greg Abbott vetoed the would-be law. He proposed instead a robust regulatory regime governing consumable hemp products. Read More
