Stores selling CBD – a nonpsychoactive component of marijuana and hemp – have been popping up statewide, almost as if Texas recently enacted a sweeping medical cannabis program.
The boom in retail sales of products containing CBD, or cannabidiol, has instead been taking place in a legal gray zone, with law enforcement agencies, prosecutors and some pro-cannabis activists disagreeing among themselves as to whether it is lawful in Texas.
The uncertainty stems largely from vaguely worded state marijuana prohibitions, as well as from evolving cannabis policies at the federal level.
But even those who contend it is illegal say enforcement is a low priority for prosecutors and police.
Texas lawmakers approved a restrictive medical cannabis law in 2015, called the Compassionate Use Act, that allows dispensaries licensed by the Department of Public Safety to make and sell CBD products that have greater percentages of active ingredients than the bulk of those now found at retail outlets. But the DPS has only allowed three dispensaries to obtain licenses — with each required to pay an initial $488,520 administrative fee — and the law only permits them to sell to patients suffering from a rare form of epilepsy and referred by a doctor.
“We legalized CBD through the Compassionate Use Act — that’s it,” said state Rep. Stephanie Klick, R-Fort Worth, a leading sponsor of the bill that created the state law. “Even if it is a hemp-derived product (instead of marijuana-derived), Texas has not legalized hemp.”
But Klick’s view hasn’t stopped wellness centers, natural products retailers and vape shops that sell over-the-counter CBD produced out of state from opening throughout Austin and other Texas metro areas, based on the premise that it’s legal under federal law and not prohibited by state law at low levels of active ingredients. The stores have been capitalizing on nationwide hype touting CBD as something of a wonder therapy for everything from chronic pain to insomnia.
‘Hard-pressed to prosecute’
If such retail CBD actually is illegal in Texas, the penalty for a first-time offense is likely a Class A misdemeanor for selling it and a Class B misdemeanor for possessing it, according to the Texas District and County Attorneys Association. The group — which provides education, training and legal research to prosecutors — agrees with Klick that CBD is illegal in Texas outside the Compassionate Use Act, although enforcement has been scant and that opinion doesn’t appear to have been tested in court.
“That is how we interpret the current state of the law in Texas, but I don’t think it should surprise people to find out that (prosecutors) don’t think it’s the best use of their limited resources” to pursue a case involving a substance that isn’t intoxicating, said Shannon Edmonds, a staff attorney for the organization.
“Prosecutors have limited resources, and they have to make difficult decisions on how best to use those resources,” he said.
A case in point is Travis County, where a need to prioritize in an overburdened court system was among the drivers of a program enacted this year allowing first-time offenders caught with small amounts of actual marijuana — cannabis containing high levels of tetrahydrocannabinol, or THC, the euphoria-inducing component — to avoid criminal charges by taking a class instead.
Travis County District Attorney Margaret Moore and County Attorney David Escamilla both consider CBD — which doesn’t produce a high — to be illegal in Texas outside the Compassionate Use Act, according to their spokespersons. But Escamilla, whose office handles misdemeanors, isn’t focused on the issue.
“Technically, (CBD) is illegal,” said Dan Hamre, first assistant county attorney. “But on a case-by-case basis, we would be hard-pressed to prosecute anything like that. I doubt that the arresting agencies would even bring anything to us.”
Some other local law enforcement authorities disagree that all CBD sold outside the Compassionate Use Act is against state law, however.
Williamson County District Attorney Shawn Dick said his understanding is that retail CBD is legal in Texas if it’s sold as part of a product containing no detectable levels of THC.
Austin police Lt. Oliver Tate, who oversees a number of narcotics teams in the department’s organized crime division, said retail CBD is legal if it contains no more than 0.3 percent THC — which has been the federal definition of industrial hemp and is widely cited by retailers and other proponents as among the evidence that it is lawful.
For comparison, the Compassionate Use Act allows the state’s three licensed dispensaries to produce and sell CBD products containing up to 0.5 percent THC. Marijuana for recreational purposes generally contains from 9 percent to more than 30 percent THC.
Tate said he sought and received guidance on the issue directly from the Department of Public Safety. DPS officials didn’t address requests from the American-Statesman to comment on the legality of retail CBD or on what guidance the department provided to Tate. Instead, the DPS referenced a previous written statement saying it considers “a product with any detectable level of THC” to be illegal in Texas outside the Compassionate Use Act, although the department didn’t mention CBD specifically and noted that its position isn’t binding on other law enforcement agencies.
Melvin Patterson, a U.S. Drug Enforcement Administration spokesman, said it’s a misconception that CBD products containing O.3 percent THC or less are legal at the federal level.
The DEA recently downgraded a formulation of CBD in a new prescription-only epilepsy drug called Epidiolex on its list of controlled substances after the Food and Drug Administration approved Epidiolex as a treatment. But Patterson said all other CBD remains on the list of Schedule 1 substances considered to have no currently accepted medical use and high potential for abuse, despite the definition of industrial hemp.
Regardless, the unlikelihood of enforcement would seem to make the question of CBD’s legality moot. But some observers contend the lack of a clear regulatory framework amid the retail boom has put consumers in jeopardy because they have little way of knowing what’s actually in the products or any recourse if it isn’t what’s advertised.
‘Complex and ambiguous’
Kyle Hoelscher, a Corpus Christi attorney and pro-marijuana activist, said he generally supports “flouting the law” on cannabis but advises clients that CBD probably is illegal in Texas and that they should be careful about purchasing it at retail stores anyway because it’s unclear what it might contain.
As for CBD itself, “the law is so complex and ambiguous, very learned people can have very different opinions on what a line of statute means,” Hoelscher said. “It’s highly unlikely that someone is going to go to jail (just for CBD), but I cannot sit here and say that it is my legal opinion that it is a legal chemical” outside the Compassionate Use Act.
Fears also have arisen that the burgeoning number of retail CBD shops across the state will undermine the Compassionate Use Act.
Morris Denton, chief executive of Compassionate Cultivation in Manchaca — one of the three medical cannabis dispensaries licensed under the restrictive law — said he considers it likely that some customers potentially eligible to use his regulated products have opted instead for retail alternatives seemingly available at any corner store because they aren’t aware of the difference.
If state lawmakers “just allow (retail CBD) to run unchecked and they don’t expand the Compassionate Use Program (to include greater patient eligibility), then I think the program is in danger,” Denton said.
He said he’s also worried for patients, because “people are buying just basic, generic olive oil (in some cases) and thinking they’re getting all these benefits” from CBD.
The retail market “has run amok, and it is going to take a whole lot of effort to clean it up,” Denton said.
Klick, who helped sponsor the Compassionate Use Act, said she hopes to begin that process during next year’s session of the Legislature. She said her office is researching methods of better regulating the booming market for retail CBD, such as by enacting truth-in-labeling requirements or possibly expanding the Compassionate Use Act.
Whatever action state lawmakers ultimately take, however, restricting the availability of CBD to fewer Texans might be a political nonstarter. The Texas Department of State Health Services briefly considered a plan last spring that would have forced retail stores to stop selling food and supplements infused with CBD, but the agency backed off after a public outcry.
CBD hasn’t gotten any less popular in the ensuing months, judging by the steady stream of customers entering Austin American Shaman, a new CBD retailer in North Austin, on a recent weekday. The store, which opened last month, is the first Austin franchise of Kansas City-based CBD American Shaman.
Elsie Dietrich, who owns the Austin store with her husband, Gene, said all of American Shaman’s products are independently tested to verify their contents, and all of them can be legally sold in Texas.
The last part of that statement appears to be open for debate, but Dietrich said she’s not concerned.
“We’ve seen (CBD) help so many people,” she said. “There are people that come through here that legitimately have so many issues. To us, if we are helping people get off opioids, it’s worth the risk.”