Attorney General Ken Paxton asked by Rep. Terry Canales, D-Edinburg, to rule on legality of CBD oil, an extract of marijuana, used for health benefits


Featured: CBD Oil, which is short for cannabidiol oil, is a cannabinoid extract that is alleged to have the health benefits of cannabis (e.g. pain relief, easing of inflammation, anxiety management and the treatment of epilepsy) without the psychoactive effects of marijuana, according to the Texas firm of Barnett, Howard & Williams, PLLC, Attorneys and Counselors at Law (bhwlawfirm.com).

Photograph Credit: TheHempOilBenefits.com

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Attorney General Ken Paxton asked by Rep. Terry Canales, D-Edinburg, to rule on legality of CBD oil, an extract of marijuana, used for health benefits

By DAVID A. DÍAZ
Legislativemedia@aol.com

A key state lawmaker has joined a South Texas city located in his legislative district in asking Attorney General Ken Paxton to rule whether or not CBD oil, an extract of marijuana used because of reported health benefits, is legal in Texas.

“A few weeks ago, the City of Edinburg wrote to you to request a legal opinion and guidance regarding the confusion surrounding the legal status of cannabidiol (CBD),” Canales stated in his letter, dated Friday, April 5, 2019. “As the State Representative for the City of Edinburg, and the Chairman of the House Committee on Transportation, I would like to make an official Attorney General Opinion Request.”

An attorney general opinion is a written interpretation of existing law. The Texas Constitution and section 402.042 of the Texas Government Code grant the attorney general authority to issue attorney general opinions. Courts have stated that attorney general opinions are highly persuasive and are entitled to great weight. However, the ultimate determination of a law’s applicability, meaning or constitutionality is left to the courts.

(https://texashistory.unt.edu/explore/collections/TXAGO/)

CBD is a concentrated solvent extract that’s produced from cannabis flowers or leaves. It is dubbed as a non-intoxicating extract as opposed to tetrahydrocannabinol (THC), according to the House District 40 state legislator. In the last few years, CDB oil and other CBD products have been sold and use to treat a range of medical conditions, including epilepsy, Parkinson’s disease, schizophrenia, and anxiety disorder.

Uncertainty about the legal status of cannabidiol (CBD) resulted in Edinburg City Attorney Omar Ochoa on Monday, March 14, 2019 filing a petition for a Texas Attorney General Opinion.

“The City of Edinburg requests guidance for the sake of its residents, local businesses, and police officers,” Ochoa stated. “The City wants to instruct police officers how to handle CBD sales and possession and to inform its residents and local businesses of the correct status of the law.

Cannabidiol (CBD) generated considerable attention in 2015 during the 84th Regular Session of the Texas Legislature, when state lawmakers considered, debated, and passed Senate Bill 339 by Sen. Kevin Eltife, R-Tyler, which established a physician’s authority to prescribe low-THC cannabis to a patient with intractable epilepsy.

“According to testimony on SB 339, cannabidiol (CBD) has been shown to dramatically decrease the number of seizures in people with intractable epilepsy,” Canales further stated. “The oil is produced to be high in CBD and low in tetrahydrocannabinol (THC), which is the intoxicating ingredient in the marijuana plant.”

Since the enactment of SB 339 the federal government passed the 2018 Farm Bill, he noted.

“The Bill removed hemp and hemp-derived products from the list of Schedule I drugs under the Controlled Substances Act. The federal definition of hemp requires that it contain less than 0.3% THC. Thus, the widespread believe as a result of these laws is that CBD oil extracted from hemp that contains less than 0.3% THC is legal and may be sold, purchased, possessed, and used,” Canales explained.

Retail and consumer behavior reflect this belief, he added.

“CBD stores have opened across the state, including in Hidalgo County, selling a variety of CBD products. Customers visit these retailers to purchase CBD products in hopes of treating their ailments, sometimes chronic. They possess CBD in their homes, in their cars, and in the bags and purses,” Canales stated. “On March 15 (2019), the Commissioner of the Texas Department of Health and Human Services signed an amendment to remove hemp from the list of controlled substances. This administrative change, if legal and binding, could potentially help settle the situation but the results still remain unclear.”

The state lawmaker’s request also comes as more mainstream corporations are preparing to sell retail products that use CBD.

According to a CNBC News report posted on Wednesday, March 27, 2019, “Walgreens will sell CBD creams, patches and sprays in nearly 1,500 stores in select states, the company told CNBC on Wednesday. The drugstore chain will sell the cannabis-based products in Oregon, Colorado, New Mexico, Kentucky, Tennessee, Vermont, South Carolina, Illinois and Indiana. Walgreens declined to specify which brands it would carry.

“‘This product offering is in line with our efforts to provide a wider range of accessible health and wellbeing products and services to best meet the needs and preferences of our customers,’ Walgreens spokesman Brian Faith said in an email to CNBC.”

(https://www.cnbc.com/2019/03/27/walgreens-to-sell-cbd-products-in-some-stores.html)

CVS Pharmacy announced Wednesday, March 20, 2019 that it will begin selling hemp-derived CBD products in eight states, CNBC also reported. The national drug store chain will be marketing the topical cannabidiol products, such as creams, sprays and roll-ons, as “an alternative source of relief,” CVS said in a statement to NBC News. CVS will also be partnering with a company to test and verify the quality of the CBD topicals sold in its drug stores. Texas is not one of the states where CVS will sell those items.

(https://www.nbcnews.com/health/health-news/cvs-sell-cbd-products-800-stores-8-states-n986016)

Despite the 2018 Farm Bill and retailer and consumer actions, certain jurisdictions in the State continue to prosecute for the sale, distribution, and/or possession of CBD products, including CBD oil, he noted. In Tarrant County, District Attorney Larry Moore has said in response to media inquiries that CBD is illegal under state law and that his office will prosecute persons and businesses. In contrasts, the Denton County District Attorney’s office responded to a media inquiry that it is currently not pursing CBD-only cases given the state of the law.

“Given the confusion among jurisdictions within the State, and the apparent disparity between state and federal law regarding CBD, I am requesting guidance for the sake of my constituents, business throughout the state, and law enforcement,” Canales concluded his letter. “I believe it is imperative that we clarify how law enforcement should handed CBD sales and possession, in order to inform Texas of the correct status of the law. I therefore ask: Is the sale, distribution, and possession of CBD products, including CBD oil, permitted in Texas?”

The Texas firm of Barnett, Howard & Williams, PLLC, Attorneys and Counselors at Law (bhwlawfirm.com), which provides criminal defense services, provides their legal views on the issue of CBD oil in Texas.

Their summary follows:

IS CBD OIL LEGAL IN TEXAS? PERHAPS, BUT IT MUST FIT THESE QUALIFICATIONS

By Luke Williams
January 5, 2019
Drug Crimes

What is CBD Oil?

CBD Oil, which is short for cannabidiol oil, is a cannabinoid extract that is alleged to have the health benefits of cannabis (e.g. pain relief, easing of inflammation, anxiety management and the treatment of epilepsy) without the psychoactive effects of marijuana.

CBD Oil is sold as a supplement in marijuana dispensaries, nutrition stores, and even as an additive in smoothies. While the popularity of CBD Oil is growing substantially, the product remains unregulated by the U.S. Food and Drug Administration, leading to wide discrepancies in the product’s ingredients and quality. The variety of ingredients and compounding methods may have significant ramifications for consumers depending on Federal and state law and the interpretation of those laws by state law and health code enforcement agencies.

Is CBD Oil Legal Under Federal Law? Yes, if it is produced within federal guidelines.

As of December 20, 2018, the Fed Gov has legalized hemp that has a tetrahydrocannabinol (THC) concentration of no more than 0.3% by removing it from Schedule I of the controlled substances act. States and Indian Tribes may regulate the production of Hemp by submitting a plan to the USDA. This bill also makes hemp producers eligible for the federal crop insurance program and certain USDA research grants.

With the passing of the new 2018 Farm Bill, hemp and hemp-derived products have been officially removed from the purview of the Controlled Substances Act, such that they are no longer subject to Schedule I status. Meaning that so long as CBD is extracted from hemp and completely pure (with less than 0.3% THC on a dry weight basis of THC, something the DEA doubts is possible) and grown by licensed farmers in accordance with state and federal regulations, it is legal as a hemp product.

However, in 2016 the Drug Enforcement Agency released an administrative ruling considering CBD Oil to be a Schedule One drug, comparable to heroin, peyote and LSD, operating on the theory that it is extracted from the same parts of the Cannabis sativa plant that contain THC, the active ingredient of marijuana.

CBD consumers and manufacturers assert that CBD can also be extracted from the non-intoxicating parts of the Cannabis sativa plant that produce hemp, however, a recent 9th Circuit decision affirmed the DEA’s authority to classify CBD Oil as within their administrative purview.

For CBD Oil to be considered legal in the Federal system under the DEA’s guidelines it must “consist[] solely of parts of the cannabis plant excluded from the CSA definition of marijuana.” In the definition of marijuana given by the Controlled Substances Act, the “mature stalks of such plant, fiber produced from such stalks, oil or . . . any other . . derivative, mixture, or preparation of such mature stalks” are excluded from the definition.

Presently the DEA considers an extraction process using only the parts of the cannabis plant that are excluded from the CSA definition of marijuana to be “not practical.” This is because the extraction process used would “diminish any trace amounts of cannabinoids that end up in the finished product.”

Is CBD Oil Illegal Under the Laws of the Various Individual States?
Yes, CBD is legal, but not in all states.

At the state level, CBD Oil is considered legal in the states where marijuana is legal for recreational use (Alaska, California, Colorado, DC, Maine, Massachusetts, Nevada, Oregon, Vermont). Twenty-nine states have made marijuana legal for medical use in various quantities and CBD is also considered legal under those state laws, irrespective of the THC content of the source of the oil. In states that have not decriminalized marijuana, CBD Oil is also likely illegal.

Is CBD Oil Legal In Texas?
NO, unless you fall within the qualifications set by the Compassionate Use Act.

If you are prescribed the use of medical CBD oil and use ‘low-THC” CBD, then the use is legal. Texas has legalized marijuana for medical use only, but only in a very narrow set of circumstances.

The Compassionate Use Act of 2015 authorizes the prescription of “low-THC cannabis,” defined as having no more than 0.5% THC for patients diagnosed with intractable epilepsy and entered into the state-maintained “compassionate-use registry.”

The Act requires prescription by two physicians however, it is currently illegal under federal law for a physician to “prescribe” marijuana. Under a 2000 court ruling, it is legal for physicians to “recommend” marijuana to their patients but the language of the Compassionate Use Act calls for a prescription, setting up a conflict with Federal law.

Additionally, to qualify for the medical use of CBD, the patient must have tried two FDA-approved drugs and found them to be ineffective. There are currently three dispensaries licensed by Texas to sell qualifying products to authorized consumers.

If you do not fall within the qualifications set by the Compassionate Use Act, then possession of CDB oil containing any amount of THC is against Texas law. The State definition of marijuana closely tracks the Federal definition.

The Texas Health and Safety Code defines marijuana as “the plant Cannabis sativa . . . and every compound, manufacture, salt, derivative, mixture, or preparation of that plant or its seeds.” The Code excludes “the mature stalks of the plant or fiber produced from the stalks [and] a compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, fiber, oil.” Texas does not currently have legislation allowing for the cultivation of hemp, though industrial hemp derived from the mature stalks of the Cannabis sativa plant may be sold and consumed.

What is the Penalty for Possession of CBD Oil in Texas?

In Texas, if you possess CBD oil with any trace of THC, you could be charged with a Felony for Possession of a Controlled Substance in Penalty Group 2, which (depending on the weight in grams) can carry a range of punishment from 180 days in a state jail facility up to 20+ years in prison and a fine not to exceed $10,000. Several of our clients have been arrested for possessing CBD oil after officers performed a field test and discovered that yielded a positive result for THC.

If the CBD oil does not contain any THC, is it currently a Schedule V substance not in any penalty group. Possession of CBD with no THC can be charged as a Class B Misdemeanor with a punishment range of 0 – 180 days in jail and a fine up to $2,000.

What To Look For In CBD Oil In Texas

CBD Oil made from the mature stalks of the Cannabis sativa plant are likely in conformity with both Federal and Texas State law. Consumers seeking to purchase CBD Oil in Texas should look for a product advertised as being the product of “industrial hemp” or “mature hemp.” Products advertised as containing “THC” or “CBD Oil” should be avoided because of potential conflict with State and Federal laws.

Texas consumers with intractable epilepsy may seek to join the Compassionate Use Registry and get a prescription for CBD Oil containing less than 0.5% THC from an authorized dispensary.

Physicians should be mindful that “prescribing” CBD Oil to Texas residents under the Compassionate Use Act may fall into conflict with existing Federal law.

Retailers that are not one of the three state-authorized dispensaries authorized by the Compassionate Use Act should take care to carry only products that do not advertise themselves as containing CBD Oil but instead focus on being the product of industrial hemp.

Where Can I Purchase CBD Oil with 0% THC?

While there are many CBD oil stores popping up all over Texas, we have found one near our office that sells CBD Oil with 0% THC in it. They test it to confirm the THC content so that you can be sure of what you are getting. Visit Your CBD Store at https://yourcbdstorekeller.com to learn more or purchase their CBD products online. But remember that even though many agencies are not choosing to arrest or prosecute for zero THC CBD oil, the Tarrant County DA’s office is still filing these cases if a person is arrested.

Sources:

H.R.2642 – 113th Congress (2013-2014): Agricultural Act of 2014.
Hemp Industries Association v. USDEA, No. 17-70162
SB339 Texas Compassionate Use Program
Conant v. McCaffrey WL 1281174

(https://www.bhwlawfirm.com/practice-areas/fort-worth-drug-crimes-defense/)

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Rep. Terry Canales, D-Edinburg, who is the Chair of the House Committee on Transportation, represents House District 40 in Hidalgo County, which includes portions or all of Edinburg, Elsa, Faysville, La Blanca, Linn, Lópezville, McAllen, Pharr and Weslaco. He may be reached at his House District Office in Edinburg at (956) 383-0860 or at the Capitol at (512) 463-0426. For more on this and other Texas legislative news stories which affect the Rio Grande Valley metropolitan region, please log on to Titans of the Texas Legislature (TitansoftheTexasLegislature.com).



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