Update: HB 2593 failed to get a floor hearing in the Senate to confirm the conference committee changes. When Sen Nathan Johnson requested to hear the bill on the floor, Patrick denied the request. This was likely due to frustration on Patrick’s behalf that the language for delta-8 was not be found explicitly in the bill at that point, with no other avenues for the language to be attached to.
HB 3948 (Hemp Cleanup Bill) and HB 2593 (THC Concentrates), was required to have a conference committee report filed and distributed by Saturday evening at midnight, HB 3948 failed to meet that mark due to delta-8, while HB 2593 succeeded.
HB 2593 was able to go through its conference committee after the bill’s author, Rep. Moody, challenged the Senate amendments and the report was distributed at 7:30 pm Saturday evening. Senate amendments to the bill were going to place a cap on delta-8 or any THC isomers at 0.3%, defining anything below such levels as hemp and anything above a class b misdemeanor. The committee agreed to remove the language from the bill. Now the chambers will vote to accept the changes and send the language to the governor’s desk.
Learn how to become a medical cannabis patient in Texas
HB 3948 did not meet the filing and report distribution deadline as required for the bill to move forward. It may be possible for the rules to be waived, but it is extremely unlikely for that to happen. Other advocacy leaders are already calling the bill dead. The hang-up on the bill was the language that included delta-8 by targeting synthetic isomers made in a lab from CBD.
This language was included in the bill in a different form in its original draft from the House but was removed in a committee substitute for the House Agriculture committee after backlash from the industry. When the bill was sent to the Senate it was sponsored by Senator Perry, who had sponsored the legislation in the previous session. Senator Perry put language back into the bill that was going to be stricter than the original House bill and the one he had authored himself, at the direction of Lt. Gov Dan Patrick and Governor Greg Abbott. At the committee hearing, Senator Perry stated that if the language was pushed about synthetics, he would be willing to pull the program.
Advocacy groups worked with Perry’s office to strike a middle ground because the options put forward were a total ban of delta-8 or a list of limited restrictions. Advocacy groups slowly worked the language to be something that would have been insanely difficult for the state to prove in court. Items such as proving if the delta-8 product was synthetic or coming naturally from the plant, if the item was intoxicating (intoxicating is super subjective when it comes to cannabis vs another substance such as alcohol), etc.
TCC was able to obtain the final language being proposed at the literal last moment during conference committee.
Sec.443.006 TETRAHYDROCANNABINOL CONTENT.
(a) Notwithstanding any other law, a person may not manufacture, sell, or purchase a consumable hemp product in this state:
(1) that has a delta-9 tetrahydrocannabinol concentration of more than 0.3 percent on a dry weight basis;
(2 )that exceeds any federal limit for tetrahydrocannabinol; or
(3) if additional tetrahydrocannabinol in a concentration greater than 0.3 percent on a dry weight basis has been applied to the product.
(b) Chapter 481 prevails to the extent of any conflict with this section.
It is possible that the section about Chapter 481 was what was primarily not agreeable. The only real changes that would have taken place from the language posted, are (3) and section (b). Chapter 481 states:
Sec. 481.002. DEFINITIONS. In this chapter: (5) “Controlled substance” means a substance, including a drug, an adulterant, and a dilutant, listed in Schedules I through V or Penalty Group 1, 1-A, 2, 2-A, 3, or 4. The term includes the aggregate weight of any mixture, solution, or other substance containing a controlled substance. The term does not include hemp, as defined by Section 121.001, Agriculture Code, or the tetrahydrocannabinols in hemp.
Section 121.001 of the Agriculture Code states:
Sec. 121.001. DEFINITION. In this chapter, “hemp” means the plant Cannabis sativa L. and any part of that plant, including the seeds of the plant and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.
From this, the average Texan could think that delta-8 would be in the clear. The issue is that DSHS is contending against the federal government that 481.002 being adopted automatically to align with the federal CSA was improper and that the CSA change was improper.
Pursuant to Section 481.034(g), as amended by the 75th Legislature, of the Texas Controlled Substances Act, Health and Safety Code, Chapter 481, the commissioner may object during the 30-day period beginning on the day after the date of publication in the Federal Register of a final order designating a substance as controlled or deleting a substance from the schedules.
Note the part about Chapter 121, the rest of that chapter points to another chapter that gives the DSHS Executive Commissioner power to change rules in accordance with the state hemp plan (which must be within federal compliance) and federal code.
Sec. 121.003. STATE PLAN. (a) The department, after consulting with the governor and attorney general, shall develop a state plan to monitor and regulate the production of hemp in this state. The plan must comply with:(1) 7 U.S.C. Section 1639p;(2) Chapter 122; and(3) Chapter 443, Health and Safety Code.
Read more about Delta-8 in Texas
This is a section of 443 Health and Safety Section about DSHS
SUBCHAPTER B. POWERS AND DUTIES
Sec. 443.051. RULEMAKING AUTHORITY OF EXECUTIVE COMMISSIONER. The executive commissioner shall adopt rules and procedures necessary to administer and enforce this chapter. Rules and procedures adopted under this section must be consistent with:
(1) an approved state plan submitted to the United States Department of Agriculture under Chapter 121, Agriculture Code; and
(2) 7 U.S.C. Chapter 38, Subchapter VII, and federal regulations adopted under that subchapter.
So, there is a DSHS executive commissioner that thinks the CSA modifications were not appropriate and is not adopting them. From the previously linked letter by the DSHS commissioner:
In the capacity as Commissioner of the Texas Department of State Health Services, John Hellerstedt, M.D., objected to the modifications of the two definitions to the extent that the definitions allow for the presence or
addition of tetrahydrocannabinols aside from the presence of delta-9-tetrahydrocannabinol. Multiple tetrahydrocannabinol isomers and variants may have pharmacological or psychoactive properties…Decision: The modifications of the two definitions above are not adopted.
As well the state is under the presumption that it can ban these substances as they see fit because if the state follows its law of following 7 U.S.C. Chapter 38, Subchapter VII, this issue then arises and results in courts having to determine if actions taken by DSHS are constitutional or not. This is language from that legal code on hemp:
(3) Relation to State and tribal law
(A) No preemption
Nothing in this subsection preempts or limits any law of a State or Indian tribe that—
(i) regulates the production of hemp; and
(ii) is more stringent than this subchapter.
DSHS is operating under the notion that delta-8 is illegal. They believe they can control to an extent what Chapter 481 states and considers a controlled substance when the federal government gives permission for revision by the state legislature. They did not approve of the DEA clarifications that did not prohibit delta-8. DSHS, represented by Stephen Pahl from the Department of State Health Services, was present at the committee hearing in the Senate for the hemp bill and stated the same notion. DSHS told the committee they were operating on the concept that delta-8 was not a legal substance to sell. When speaking with Perry’s staff in the last week, information was that their office’s contact with DPS informed them that by the end of the year, their labs would be fully up and running, not on a backlog, and ready to test materials presumed to be illegal.
Members that testified about the testing of the delta-8 products spoke in committee on how they had seen the product go to market that was more delta-9 than delta-8, was almost pure delta-9 and marketed as delta-8, or had substances appearing in 3rd party lab tests such as heavy metals, or non-consumable solvents such as bleach or paint thinner. All of which are items not legal under our current hemp law in Texas. It could be likely that DPS/DSHS goes after shops they believe are selling illicit delta-8 items. This is one of the primary reasons, the industry saw advocates across the industry advocating for 3rd party testing for products and audits on labs performing tests.
This will likely result in many lawsuits across the next two years just on delta-8 alone. The bill dying also killed off many opportunities for farmers in the space and research in colleges and universities, along with becoming the first state to have feed as a commodity.
