Some cannabis advocates have been caught up in the hype of the smokable hemp issues. with DSHS Texans and some retailers have possibly overlooked another key issue with hemp retail in Texas.
The testing required to be sold as a consumable product in Texas is beyond just the potency of cannabinoids. And the burden doesn’t stay as much with the person growing the crop to be sold or the actual product itself, as it does with the retailer. The new DSHS rules reinforce the notion from HB1325 that the retailer of consumable hemp products holds responsibility for selling potentially dangerous products.
DSHS requirements on their website state the following:
Retailers selling consumable hemp products must ensure the product is safe for consumption by being free of heavy metals, pesticides, harmful microorganisms, and residual solvents. Note: HB 1325 contains limitations regarding retail sales of out-of-state consumable hemp products. The out-of-state consumable hemp products must be processed or manufactured in compliance with:
- that state or jurisdiction’s plan approved by the USDA;
- in the absence of a state submitted plan, a plan established by the USDA; or,
- the laws of that state or jurisdiction if the products are tested in compliance with, or similar to those set out in Section 443.151 of HB 1325.
Then there is the language from HB1325.
SUBCHAPTER D. TESTING OF CONSUMABLE HEMP PRODUCTS
Sec. 443.151. TESTING REQUIRED.
(b) Before a hemp plant is processed or otherwise used in the manufacture of a consumable hemp product, a sample representing the plant must be tested, as required by the executive commissioner, to determine:
(1) the concentration of various cannabinoids; and
(2) the presence or quantity of heavy metals, pesticides, and any other substance prescribed by the department.
(c) Before material extracted from hemp by processing is sold as, offered for sale as, or incorporated into a consumable hemp product, the material must be tested, as required by the executive commissioner, to determine: (1) the presence of harmful microorganisms; and
(2) the presence or quantity of:
(A) any residual solvents used in processing, if applicable; and
(B) any other substance prescribed by the department.
(d) Except as otherwise provided by Subsection (e), before a consumable hemp product is sold at retail or otherwise introduced into commerce in this state, a sample representing the hemp product must be tested:
(1) by a laboratory that is accredited by an accreditation body in accordance with International Organization for Standardization ISO/IEC 17025 or a comparable or successor standard to determine the delta-9 tetrahydrocannabinol concentration of the product; and (2) by an appropriate laboratory to determine that the product does not contain a substance described by Subsection
This puts retailers in a high risk situation with selling products. A retailer in Lake Jackson, TX that desired to be referred to as Frank, spoke with TCC about this situation. Frank spoke briefly about how it has been difficult to find a supplier of CBD and hemp products that are suppling a COA (certificate of authenticity) that includes the extra testing beyond potency, required by Texas law and DSHS code.
“Our biggest fear as a retailer is DSHS shutting down the income for our store and taking the inventory. They take can take everything we have in the store and confiscate for testing if they want to, ” Frank stated.
If stores can’t get ahold of this data for testing, they run the risk of an enforcement lottery of sorts. A random inspection or even a few angry irrational customers can possibly trigger an investigation and cost you product as the state sorts out the details. If you don’t have an awesome lawyer on hand, you may be waiting longer than normal to get attended to legally.
Susan Hays, an attorney that has been involved in the smokable hemp ban, pointed out that enforcement is a problem at the moment, and that all it takes is some bad actor to hurt someone and we will all pay the next (legislative) session.
Ms. Hays told TCC, “I personally won’t buy anything unless I see a full COA.”
That’s probably the wisest move in the state of Texas, but it also comes as a costly move. This issue could eliminate most products off of store shelves as Texas gets its hemp supply chain in place over the next year. Is it likely that most stores will remove their products until they have a proper COA, no. It will then be incumbent on the buyer to ensure they know what they are buying and holding retailers that are bad actors accountable for carrying such a product.