[UPDATE 4/24/18] – We have confirmed, through representatives, that the Texas Department of Health was not aware of the ongoing case with Hemp Industry Association VS. the DEA or of the protections granted under the Farm Bill Hemp Pilot program. They will hold a public hearing to discuss the departments expectations for CBD products manufactured in Texas. In short, this confusion created a temporary setback but is ultimately leading to a thoughtful discussion. And yes, you can still buy and sell hemp oil products with naturally occurring CBD in Texas.
Here’s an article that confirms the above:
https://www.mystatesman.com/news/state–regional-govt–politics/state-backs-off-cannabis-oil-ban-seeks-big-picture-plan/oe5D6iZjHr8D0JZXgJPHrO/ (Note: there’s a few misleading comments in the article such as claiming CBD is federally illegal. As you may have learned in our post about the DEAs new drug code 7350, CBD derived from Farm Bill Compliant Hemp, such as Green Lotus Hemp products, are in fact federally legal.)
There’s been a lot of discussion happening in Texas regarding the legality of hemp oil products that contain naturally occurring CBD (cannabidiol) and we’d like to take a minute to provide some perspective. We sell products all over the U.S., and as you may imagine, each municipality and / or state agency has it’s own viewpoint on hemp derived products. We anticipate, and are certainly not surprised, when an agency has questions or concerns. And to be 100% honest ~ their concerns are typically valid based on the information provided by various federal agencies, most notably the DEA ~ more on that in moment
Texas, a state with 26,000,000 residents, is now at the crossroads of that debate with the State’s Department of Health. Indiana was in a similar situation as well. Thankfully their agencies were able to work together in a collaborative way to disseminate fact from fiction and Indiana passed legislation to make it abundantly clear that CBD is legal in Indiana. Texans and their respective State agencies have a right to be confused, but we’re confident that this discussion, like others, will end in thoughtful interpretation and communication of the appropriate law(s).
So what is the law? Well, thankfully for you, me, and any concerned party ~ the intention of this post is to not share our opinion, but rather, outline why the above confusion is happening, the remedy currently being proposed to the 9th circuit court, and in general help educate.
Why does the Texas Department of Health think CBD is illegal? Good question. In the State’s proposed CBD rules, they state that CBD is a controlled substance. The reason they believe this is the DEA recently created a new drug code 7350 that would define ALL CANNABIS extracts a controlled substance. This definition would be too broad considering that section 7606 of the US Farm Bill allows the cultivation and processing of raw oils from the plant material. Here’s the key point, the point that is often very misunderstood ~ Hemp and Marijuana are BOTH considered cannabis. Cannabis is species of plant ~ “marijuana” and “hemp” are legal definitions. The DEA has the authority to enforce law regarding cannabinoids derived from Marijuana as defined in Title 21 United State Code Controlled Substance Act 802 subsection 16 but does not have the authority to regulate cannabinoids derived from Farm Bill compliant hemp. This small but very important detail is creating a great amount of confusion throughout the US, not just in Texas.
Thankfully the National Hemp Industry Association recognized early on that drug code 7350 was going to lead to a lot of confusion, primarily with State agencies that would interpret the law to mean that all cannabis extracts are illegal. In 2004, the DEA tried creating a similar drug code, Code 7370, but was ultimately litigated against by the HIA and court ruled in favor of the HIA. History tends to repeat itself, and here we are again facing the enforcement of the drug code that reaches far beyond what congress, and more importantly, what American citizens want enforced.
So here we are at round #2 of the Hemp Industry Association vs. the DEA. The HIA has filed suit against the DEA to remove and or clarify the drug codes jurisdiction. What’s interesting this time around is that DEA does not disagree that products derived from Farm Bill compliant hemp should be excluded from the jurisdiction of new drug code 7350. You may want to take a moment to hear Chuck Rosenberg openly state to the Drug and Firearms Enforcement Oversite Committee that this new drug code is not intended to go after hemp. He does state that hemp is a controlled substance, and he’s partially correct, but fails to mention only hemp that is grown outside of a state approved Farm Bill hemp pilot program or if the plant material contains more than .3% THC on a dry weight basis. So if you wanted to start growing hemp, make sure you go though the proper channels for approval, such as Colorado’s Department of Agriculture’s hemp pilot program.
The most recent suit filed by the HIA against the DEA has received a lot of warranted attention. We’re still waiting on a final ruling from the 9th circuit court, but the first hearing has already taken place and you can review the full 23 minutes here. The DEA still agrees (link to DEA counsel comments) that this drug code does not apply to Farm Bill Complaint hemp products and they believe that clarifications they posted here should be sufficient enough to remove any confusion.
So, if the DEA agrees with the HIA in that the new drug code does not cover Farm Bill compliant hemp, then why are we even having this discussion? As I mentioned in the beginning, we expect State agencies to be confused because this drug code has been written in a manner that invites confusion. The fact that the Department of Health for the State of Texas is communicating that CBD is a controlled substance is no fault of their own, but rather misguidance provided by the DEA. During the above-mentioned hearing, the judge asks for a precedent that illustrates that said confusion is actually happening. You’ll hear Bob Hoban from Hoban law group, recite many examples. This incident with the State of Texas is yet again an example of why the 9th circuit court will hopefully rule in the favor of the HIA. And even if the court ruled in favor of the DEA, hemp products are still legal and the DEA would not disagree. If the ruling went in this direction, the DEA’s suggested remedy for any disagreement would be to challenge the ruling ~ most likely in court. Our suggestion, and hopefully yours too, would be to avoid any confusion in the first place by eliminating the drug code.
One more point that we’d like to add some clarification around ~ a point that you may be able to be helpful in making. The proposed rules by the Texas Department of Health state that products containing CBD would be considered “adulterated”. What does this mean? In short, they would argue that products containing CBD wouldn’t be safe for consumption. However, they then go on to mention, “The Department has been unable to find research that suggests trace amounts of naturally occurring CBD and THC in hemp product poses a risk to public health.” We imagine the Health Department ultimately has the best intentions here, but to mention that CBD products are adulterated is not accurate. Here at Green Lotus we go to great lengths for follow a GMP manufacturing process and our quality department rigorously tests our hemp for heavy metals, potency, solvents, pesticides, myco toxins and alpha toxins. We can’t speak on behalf of other hemp product manufactures, but our products are not adulterated.
Lastly, we know Texan’s value their access to hemp oil products with naturally occurring CBD. If you, a friend or a loved one are benefiting from CBD products in the State of Texas, we kindly ask that you reach out to tell your story. The Texas Department of Health is taking open comments regarding their new proposed rules that could end the sales of CBD in Texas. Please email your comments to: firstname.lastname@example.org or you can call tel:512-834-6670 ext 2162.
In conclusion, it’s starting to feel a bit like Groundhog Day with the same reoccurring issues happening from State to State, but we don’t blame Texas for the confusion. We’re optimistic that appropriate information will make its way to the right parties and this too shall pass.