Signed As Law: Texas Legalizes CBD, Expands Medical Program Despite Federal Prohibition

By Mike Maharrey

AUSTIN, Texas (June 18, 2019) – Last week, Texas Gov. Greg Abbott signed two bills into law that legalize hemp-derived CBD and expands access to low-cannabis THC in the state despite continued federal prohibition.

A bipartisan coalition of 21 representatives and senators sponsored House Bill 1325 (HB1325). The new law creates a licensing and regulatory program for hemp and hemp-derived products. The legislation includes provisions that authorize the manufacture and sale of hemp-derived cannabidiol and its inclusion in food products. Under the law, food or beverages containing CBD will not be considered adulterated.

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The Senate passed HB1325 by a 31-0 vote. The House gave final approval on May 22 by a 140-3 margin. With Gov. Greg Abbott’s signature, the law went into immediate effect.

Under the old law as interpreted by prosecutors and police, CBD was illegal in Texas. Although it is widely available throughout the state, only patients with intractable epilepsy who were prescribed medical marijuana under the state’s Compassionate Use Act could possess CBD. People purchasing or selling CBD oil for any other purpose were breaking state law, according to a DA interviewed by the Fort Worth Star-Telegram.

Enactment of HB1325 ensures the state will not regulate CBD and CBD products. This is crucial because despite removing the plant from the list of controlled substances late last year, the federal government still bans the sale of CBD products under FDA rules.

A large bipartisan coalition also sponsored House Bill 3703 (HB3703). The legislation expands the states medical marijuana program. Under the new law, doctors will be able to recommend low-THC medicinal cannabis for patients with multiple sclerosis, Parkinson’s disease, ALS, terminal cancer, autism, and many kinds of seizure disorders. Under the old law, low-THC cannabis was only available to patients with intractable epilepsy.

The Senate passed HB3703 by a 25-6 vote. The House gave final approval 136-5. With Gov. Abbot’s signature, the law went into immediate effect.

Although the Texas medical cannabis law is limited in scope, it still defies federal marijuana prohibition. Under the federal Controlled Substances Act (CSA) passed in 1970, the federal government maintains complete prohibition of marijuana. Of course, the federal government lacks any constitutional authority to ban or regulate cannabis within the borders of a state, despite the opinion of the politically connected lawyers on the Supreme Court. If you doubt this, ask yourself why it took a constitutional amendment to institute federal alcohol prohibition.

Despite its limited nature, Texas’ medical marijuana program removes one layer of laws prohibiting the possession and use of marijuana, but federal prohibition remains in place. This is significant because FBI statistics show that law enforcement makes approximately 99 of 100 marijuana arrests under state, not federal law. When states stop enforcing marijuana laws, they sweep away most of the basis for 99 percent of marijuana arrests.

Furthermore, figures indicate it would take 40 percent of the DEA’s yearly-budget just to investigate and raid all of the dispensaries in Los Angeles – a single city in a single state. That doesn’t include the cost of prosecution. The lesson? The feds lack the resources to enforce marijuana prohibition without state assistance.

Passage of HB3703 further undermines prohibition makes it that much more difficult for the federal government to enforce it in the Lone Star State.

2018 Farm Bill and CBD

With the passage of the farm bill, the federal government now treats industrial hemp as an agricultural commodity instead of a controlled substance. While the DEA will no longer have the authority to regulate hemp, the provisions of the farm bill have no bearing on FDA rules and regulations regarding CBD. In fact, a section in the farm bill makes this explicit.

Section 297D, paragraph (c)(1) “Regulations and Guidelines; Effect on Other Law” states “nothing in this subtitle shall affect or modify the Federal Food, Drug, and Cosmetic Act.”

Practically speaking, the passage of the farm bill does not mean CBD will now be federally-legal in all 50 states, as some hemp supporters claim. In fact, the FDA still maintains a strict prohibition on the sale of CBD in the U.S.

To date, the FDA has only approved one medication with cannabidiol as an active ingredient – Epidiolex for the treatment of seizures. But the FDA classifies CBD as “a drug for which substantial clinical investigations have been instituted.” Under federal law, that designation means the FDA maintains full control over the substance and it cannot be marketed as a “dietary supplement.” The agency maintains that the sale of CBD or any food products containing the substance is illegal.

To date, the agency hasn’t changed its position on CBD. In a recent congressional hearing, FDA Commissioner Scott Gottlieb said he understands that Congress wants a pathway to CBD availability, but said “it is not a straightforward issue” due to the fact that the agency has approved CBD for treatment of epilepsy and it is “subject of substantial clinical investigation.” Both of these factors prohibit CBD from being sold as a “health supplement” and from being added to food.

Gottlieb said, “the law does allow us to go through a regulatory process and go through a notice and comment rule-making to establish a framework to allow it to be put into the food supply.”

The FDA held its first public meeting relating to CBD in May. FDA principal deputy commissioner Amy Abernethy said there is a need to “further clarify the regulatory framework to reduce confusion in the market,” and “Key questions about product safety need to be addressed. Data are needed to determine safety thresholds for CBD.”

In effect, the agency can continue to enforce these same rules even with the passage of the 2018 farm bill. While farmers can now legally grow hemp for commercial purposes, including the production of fiber, biofuel, building products, paper, clothes and even food products that don’t contain CBD, the sale of cannabinol or food products containing CBD remain federally-illegal, as it has been all along, unless the FDA changes its policy or Congress passes legislation specifically legalizing CBD.

IN EFFECT

With HB1325 enacted, Texas will not interfere with the sale of CBD products regardless of continued federal prohibition. And without state cooperation, the FDA will likely have trouble regulating it in the Lone Star State.

Despite past and ongoing federal prohibition, CBD is everywhere. A New York Times article asserted that “with CBD popping up in nearly everything — bath bombs, ice cream, dog treats — it is hard to overstate the speed at which CBD has moved from the Burning Man margins to the cultural center.”

This was happening when both the DEA and FDA prohibited CBD. It will undoubtedly continue as long as market demand remains and states don’t interfere. The FDA can’t effectively enforce prohibition without the assistance of state and local officials.

According to the FDA, the agency prioritizes enforcement based on a number of factors, including “agency resources and the threat to public health. FDA also may consult with its federal and state partners in making decisions about whether to initiate a federal enforcement action.”

Even with both the FDA and DEA theoretically enforcing federal laws and regulations banning CBD, state and local action have already nullified federal prohibition in practice and effect. There’s no reason to think that won’t continue as long as states maintain the same stance on CBD as they did under the 2014 farm bill. Simply put, the federal government lacks the personnel and resources to crack down on CBD – even if the FDA wants to.

Michael Maharrey [send him email] is the Communications Director for the Tenth Amendment Center, where this article first appeared. He proudly resides in the original home of the Principles of ’98 – Kentucky. See his blog archive here and his article archive here. He is the author of the book, Our Last Hope: Rediscovering the Lost Path to Liberty. You can visit his personal website at MichaelMaharrey.com and like him on Facebook HERE.

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