Is CBD Oil Legal in Texas?
The cannabis plant contains over 100 cannabinoids. THC and CBD are the two most commonly discussed cannabinoids. Legislators both at the state and federal level have started recognizing the therapeutic value to CBD and CBD oils, although the legal landscape surrounding CBD oils is far from straightforward for Texans who hope to use CBD oil. The confusion stems from (recent) legalization at the federal level with very limited legalization in Texas.
CBD Oil is legal by prescription in Texas to treat seizures caused by intractable epilepsy.
CBD Oil has not been legalized in Texas recreationally for pain relief, anxiety, or depression. Possession of CBD oil is being prosecuted by a handful of district attorneys across the state, even though many law enforcement agencies refuse to make arrests or prosecute possession of CBD.
CBD under Federal Law – Agricultural Improvement Act of 2018
Effective January 1, 2019, with the passage of the Agricultural Improvement Act of 2018 (also known as the Farm Bill Act), it is no longer illegal to grow or possess hemp under federal law. Hemp has been removed from the Controlled Substances Act.
Hemp and derivates of the hemp plant, including CDB oil, are now legal under federal law as long as it has less than .3 percent THC.
Cannabis products (hemp-derived or otherwise) marketed with a claim of therapeutic benefit must be approved by the FDA. (Source: FDA)
Is CBD Oil Illegal in Texas?
CBD continues to be illegal under Texas state law unless it has been prescribed for epileptic seizures. Like marijuana, prosecution based on possession of CBD products in Texas is largely a function of where you are, not what you possess. Some district attorneys are charging individuals if there is any amount of THC in CDB products.
Prosecutors in some jurisdictions in Texas will have CBD tested for the presence of THC. If there is any detectable amount of THC, they are filing these cases as Possession of a Controlled Substance – Penalty Group 2 under Texas Health and Safety Code 481.103 and 481.116.
What is CBD Oil?
CBD is short for Cannabidiol. Like THC, it is one of 85 cannabinoids present in the cannabis plant. CBD Oil contains high levels of CBD and trace amounts of THC. The lack of high levels of THC makes CBD Oils non-psychoactive.
What is THC?
THC is short for Tetrahydrocannabinol. This is one of many chemical compounds found in cannabis. THC is responsible for the psychological and euphoric effects of the drug. In other words, it is what makes people feel “high” when they smoke or ingest marijuana.
How is CBD Different From THC?
The short answer is, unlike THC, CBD is not psychotropic. Consequently, it doesn’t result in a euphoric high the way THC does.
The longer answer is far more interesting. It is important to first distinguish marijuana from hemp. Scientifically, both marijuana and hemp come from the “cannabis sativa” plant, according to the USDA. Marijuana, though in the same scientific family as hemp, is a much smaller plant. Hemp, the taller and more fibrous version of the sativa plant has a long history in the United States. In fact, George Washington grew hemp on Mount Vernon.
Over years of breeding, the cannabis plant was developed to have high levels of THC. It is this breeding to elevate THC levels that has spurred the illegal marijuana market. Because CBD comes from an entirely different plant than marijuana, its chemical properties are different.
THC is found in large quantities in cannabis, or what most people think of as the marijuana plant. Unlike cannabis, or marijuana, hemp contains low concentrations of THC. CBD Oils are generally made from the hemp plant so they contain high levels of CBD and trace levels of THC. As a result, CBD provides a less controversial alternative to THC for health benefits.
CBD Oil in Texas
In 2015, Governor Greg Abbott signed into law what’s known as the Texas Compassionate Use Act, which allows the use of CBD oils to treat seizures caused by intractable epilepsy. The Act legalizes oils containing CBD for treatment of epilepsy, as well as other chronic medical conditions for those who have not responded positively to use of federally approved medications.
The Act authorizes the Department of Public Safety to license dispensing organizations, which function similar to compounding pharmacies. Only neurologists and epileptologists are able to offer prescriptions for CBD oil. While the law was implemented in 2015, access to CBD was delayed until 2017 to allow for additional time to create a system to ensure that distribution is confined to genuine medical necessity along with a detailed registry identifying doctors and dispensaries.
You won’t find the word “Cannabidiol” in Texas laws defining illegal substances or banning their possession or distribution. You also won’t find any of the other descriptors of Cannabidol found on the Open Chemistry Database maintained by the National Center for Biotechnology Information or in any penalty group in Texas. However, if possessed without medical necessity, it is arguable that CDB Oil would be considered a Penalty Group 2, illegal substance. Penalty Group 2 applies to hallucinogens, their salts, isomers, and salts of isomers. It does include substances like Dronabinol and Tetrahydrocannabinols.
How could CDB Oils be Prosecuted in Texas?
Possession of CBD Oil is specifically distinguished from the possession of marijuana in Texas. Texas Health and Safety Code Section 481.002 excludes oils and resins from the definition of marijuana (or “marihuana” as the Texas Legislature insists on spelling it). Instead, a prosecutor presented with a CBD Oil case is likely to argue that it falls within this definition found in the list of Penalty Group 2 substances. Instead of characterizing CBD as marijuana, Texas law added this language to the definition of Penalty Group 2.:
Tetrahydrocannabinols, other than marihuana, and synthetic equivalents of the substances contained in the plant, or in the resinous extractives of Cannabis, or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity such as: delta-1 cis or trans tetrahydrocannabinol, and their optical isomers;
delta-6 cis or trans tetrahydrocannabinol, and their optical isomers;
delta-3, 4 cis or trans tetrahydrocannabinol, and its optical isomers; or
compounds of these structures, regardless of numerical designation of atomic positions, since nomenclature of these substances is not internationally standardized;
However, the defense may be able to prove that the CBD oil in question did not contain THC, and was not similar to THC in its pharmacological activity.
A prosecutor will also make the argument that the legislature would not have to pass the Compassionate Care Act if cannabidol were already legal.
What is the punishment for CBD oil with THC present?
|Possession of Controlled Substance Penalty Group 2 (PG2)||Offense Level||Punishment Range
|Less than one gram||State jail felony||180 days to 2 years in a state jail and/or a fine of not more than $10,000
|1 gram or more, less than 4 grams||Third Degree||2 to 10 years in a state prison and/or a fine of not more than $10,000
|4 grams or more, but less than 400 grams||Second Degree||2 to 20 years in a state prison and/or a fine of not more than $10,000
|400 grams or more||Enhanced first-degree felony||5 to 99 years in a state prison and/or a fine of not more than $50,000
Think Twice About Selling CBD Oils without FDA Approval
Under current federal law, unapproved sellers of CBD Oils who describe the medical benefits of CBD Oils should at the very least expect to get a Cease and Desist letter from the FDA with language along the lines of:
Your product is not generally recognized as safe and effective for the referenced uses and, therefore, the product is a “new drug” under section 201(p) of the Act [21 U.S.C. § 321(p)]. New drugs may not be legally introduced or delivered for introduction into interstate commerce without prior approval from the FDA, as described in section 505(a) of the Act [21 U.S.C. § 355(a)]; see also section 301(d) of the Act [21 U.S.C. § 331(d)]. FDA approves a new drug on the basis of scientific data submitted by a drug sponsor to demonstrate that the drug is safe and effective.
Furthermore, your product is offered for conditions that are not amenable to self-diagnosis and treatment by individuals who are not medical practitioners; therefore, adequate directions for use cannot be written so that a layperson can use this drug safely for its intended purposes. Thus, ______ is misbranded within the meaning of section 502(f)(1) of the Act, in that its labeling fails to bear adequate directions for use [21 U.S.C. § 352(f)(1)]. The introduction of a misbranded drug into interstate commerce is a violation of section 301(a) of the Act [21 U.S.C. § 331(a)].
What Can CBD Oil be Prescribed for in Texas?
Studies show CBD oil has promise in the following areas:
• Anxiety relief
• Pain relief
However, in Texas, the only approved treatment at this time or the reduction or elimination of seizures. Notably, Florida passed a similar law in 2014; but in 2016, voters amended the law to allow for full THC forms of cannabis for those suffering from a broader variety of medical conditions, such as PTSD, MS, cancer, and HIV. Texas does not allow CBD oil for Parkinson’s patients.
In May of 2017, the Texas Department of Public Safety awarded licenses to produce, process, and dispense CBD oil to three companies. These companies, Cansortium Texas, Compassionate Cultivation, and Surterra Texas, each pay a licensing fee in order to operate facilities to produce and dispense CBD oils under the Compassionate Use Act.
Are THC Oils and Waxes Legal in Texas?
No. As of August 2017, possessing THC oil is not only a crime but also considered a more serious crime than possessing marijuana in its traditional form. In Texas, it is a felony to possess THC oil or wax. The seriousness of the felony varies based on the amount of THC oil possessed. For example, possession of less than one gram of THC oil is a state jail felony that is punishable by up to two years in jail, with a minimum of six months in prison. Additionally, a state jail felony comes with a fine of up to $10,000.
Possessing one to four grams of THC oil is a third-degree felony, punishable by a minimum of two years in prison, with a maximum 10-year prison term. Like state jail felonies, third-degree felonies come with a fine of up to $10,000.
Possession of four to 400 grams of THC oil or wax is a second-degree felony. In Texas, a second-degree felony is punishable by up to 20 years in prison. Like third-degree felonies, this offense carries a minimum sentence of two years in prison and a fine of up to $10,000.
Finally, possession of more than 400 grams of THC oil or THC wax is classified as a first-degree felony. This is the most serious felony in which someone can be charged for possessing THC oil or wax. This crime is punishable by up to 99 years in prison. This crime also carries a minimum sentence of five years in prison and a fine of up to $10,000.
Changes in Texas Law
House Bill 2107 was brought during the 2017 legislative session with a number of vocal supporters. The bill sought to remove the “low THC” restriction and amend the law to allow for “medicinal marijuana.” It also sought to expand the types of conditions that can be treated with cannabis by including post-traumatic stress disorder and terminal cancer. Finally, the bill sought to modify the language, from requiring a doctor’s prescription to requiring a doctor’s recommendation. This change intended to address concerns about the legality of physicians prescribing something prohibited by federal law. Despite having 77 sponsors and co-sponsors, 29 of whom were Republican, the bill died in committee. Given strong support, as well as national trends, changes in Texas law are likely to occur in the future.
As recently as July of 2018, the Texas Department of State Health Services backed off a decision to regulate products the include more than .03% CBD.
The complicated nature of the laws governing CBD oils makes the possession of CBD oil very defensible, especially if the CDB oil has no detectable amount of THC. If you have been arrested for an offense arising from the possession of CBD oil in North Texas, contact us at (817) 203-2220.
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