CBD products sold in Texas spark legal debate
Despite strong debates on the legality of Cannabidiol (CBD) products, businesses in Texas are pushing ahead with sales of the product. There is however a documented risk to possessing such products as CBD oil.
Chelsea DeVos, originally from Oregon, found her strong knowledge of cannabis and hemp products was in short supply after moving to Texas. This enabled her to open a business in Dallas, The Cherry Apothecary, which specializes in providing consumers with CBD products, built on the premise of offering consultations which many other stores could not provide.
After over 13 months in business, DeVos says that she has experienced strong sales and helped a lot of people with health issues who can benefit from CBD, with her recommended starting product clocking in at $23 for a bottle of tincture. She states that her products are sourced from a hemp grower and CBD producer in Colorado.
“I take it personally,” DeVos says in regards to her many CBD products, which include oils, tinctures, topicals, vaporizers, and infused edibles.
Could those products get you arrested in Texas though? While a polarizing debate takes place, one lawyer, Kyle Hoelscher, who practices in Corpus Christi and also heads up Corpus Christi NORML, says yes. In the past year, Hoelscher has taken on four clients who were arrested for possessing CBD products.
“Within the past year Corpus Christi Police Department went to a training seminar on CBD, they know what they’re looking for” he states. In every instance, his clients were arrested during a traffic stop when they had CBD products in view of the officer. In each case, the officer asked about the product, took it for testing, and subsequently arrested the individuals for possession of a cannabis product.
“There has been a major marketing push in the last two years,” Hoelscher states in regards to the numerous CBD products available in smoke shops, novelty stores, and supplement businesses like The Cherry Apothecary. He says the introduction of the medical marijuana CBD oil program in 2015, known as the Texas Compassionate Use Program (TCUP), also helped to raise the profile of these products. Many producers and businesses insist that their products are legal and different from what will be available to patients in the coming year.
“The legality of CBD is pretty simple to understand, it depends on where it was derived from,” states DeVos. “If it was derived from hemp which has no THC and the plant was grown in the US then it is considered a food supplement and 100 percent legal which is protected under the 2014 federal farm bill.”
This references section 7606 of the farm bill, which is a U.S. House hemp amendment to allow pilot programs and research to begin on industrial hemp and determine whether hemp farming would be beneficial for American farmers and businesses.
In July of 2017, the Drug Enforcement Administration (DEA) released a statement regarding the legality of CBD products.
At present, this material is being illegally produced and marketed in the United States in violation of two federal laws: The Controlled Substances Act (CSA) and the Federal Food, Drug, and Cosmetic Act (FDCA). Because it is illicitly produced by clandestine manufacturers, its actual content is uncertain and will vary depending on the source of the material. However, it is generally believed that the material is an extract of a variety of the marijuana plant that has a very high ratio of cannabidiol (CBD) to tetrahydrocannabinols (THC). Because this extract is a derivative of marijuana, it falls within the definition of marijuana under federal law. Accordingly, it is a Schedule I controlled substance under the CSA.
The DEA has gone on to clarify that “For practical purposes, all extracts that contain CBD will also contain at least small amounts of other cannabinoids. Although it might be theoretically possible to produce a CBD extract that contains absolutely no amounts of other cannabinoids, the DEA is not aware of any industrially-utilized methods that have achieved this result.”
The Foundation for an Informed Texas (FIT), which works to educate Texans about the cannabis plant and the laws surrounding it, has come to the conclusion that CBD products are illegal. A statement from their website,
These CBD oils are not from state-sanctioned programs and not subject to the same standards and testing. In fact, the FDA has put out a warning letters to several companies regarding making unfounded claims regarding their products as well as not having the actual percentages reflected accurately on labeling once they were tested. The labeling issue is backed up by findings published in the Journal of the American Medical Association (JAMA) which found that only 30 percent of the products contained percentages of CBD that were within ten percent of the amount advertised and some products also contained detectable amounts of THC, despite being promoted as THC-free. The FDA has also decided that CBD products are excluded from the dietary supplement definition and also deemed that CBD products are not legal for interstate commerce.
This means that CBD oils are still considered a schedule 1 drug and therefore not legal for sale in Texas. While there does not currently seem to be a massive number of arrests or raids in Texas, there are reports of raids and citizens facing serious time in jail for possession of the extract oil.
Jax Finkel, Executive Director for FIT, states “Many Texans are aware of the therapeutic nature of CBD oil and are eager to try to see if it helps relieve symptoms. We think it is important that they have the access to the education and resources needed to understand the legality of CBD oil in Texas.”
Hoelscher argues that regardless of federal legality, Texas law still applies, which considers hemp to be illegal. Attempts have been made over the past several Texas legislative sessions to legalize hemp, and despite passing out of committee, the bills have never been heard by the full Texas House of Representatives.
Hoelscher references Texas Health and Safety Code 481.103, 481.1031 Penalty Group 2-A, and 481.002 Penalty Group 2 in his legal arguments on the matter, stating that “Anything that can be derived from the cannabis plant will fall under this section.”
Many are quick to point out the phrasing “marijuana” used by the DEA and that hemp is not the same thing. Federal law lists the cannabis plant as Schedule I, meaning that it has no currently accepted medical use and a high potential for abuse. Both marijuana and hemp are from the cannabis plant family, which causes much confusion.
Where does this leave products such as hemp lotion and food products such as hemp seed oil and hemp milk which are commonly found at grocery stores?
DeVos argues that these are legal food products and that the CBD products she sells are considered to be the same. Hoelscher addressed the issue differently however, stating that these are legally imported products which are regulated by the federal government, while domestically produced CBD products are not.
“Do not believe anyone who tells you it is legal, the places selling it are merely flying under the radar and eventually someone is going to see that low hanging fruit and start busting those shops” Hoelscher says. “At a personal level, if you’re going to buy this stuff, which I believe should be legal, you are in violation of Texas law, and police officers know what they are looking for. Be careful because you are subject to a felony.”
Asked if she’s concerned about being prosecuted or having her products mistaken by law enforcement for products which will be sold under TCUP, DeVos says she’s not worried. “The Dallas police department has lost over seven different cases regarding hemp derived CBD, testing showed no THC, and they had to return the product. I have been open for 13 months now and not had any law enforcement issues.”
Taking a different position on the matter is the Gilbert G. Garcia Law Firm out of Conroe, which published an extensive opinion on the legality of CBD.
“In 2015, Texas passed an extensive, synthetic marijuana law that dramatically expanded the list of chemicals declared illegal” they state. They add,
These expanded definitions effectively outlawed most of the current forms of synthetic marijuana based upon isomers of THC and Cannabinol (CBN). However, these new regulations and definitions did not mention CBD, nor did they address any isomers, or similar chemical structures to CBD. It could be argued that Texas’s expanded regulations of marijuana and marijuana-like compounds do not encompass CBD, and therefore, arguably, CBD remains legal in Texas.
While CBD may be argued to be legal and exempt from the definitions of marijuana and synthetic marijuana derivatives, risk still abounds. Law enforcement officers are not chemists, and many are unaware of the differences between THC and CBD. Further, prosecutors may be unaware and indifferent of this distinction since they usually anticipate that the accused will plea before proving that a crime has occurred.
Although it is quite possible to win at trial for possession of CBD, the process of winning may be long and difficult. Sellers of CBD could see their businesses closed or raided by force, and valuable possessions at risk for asset seizure. Further, the process of proving that the CBD is legal has its own inherent risks. Those who are selling or possessing CBD must rely on the assumption that the businesses from which they bought the CBD were 100% in compliance with federal laws and FDA regulations. Store owners and customers must also have faith that the CBD which they bought is in fact 100% pure without any adulteration of THC or THC analogs or isomers.
Ultimately, it is possible to be arrested for possessing CBD products in Texas, however a definitive legal opinion on the legality of these products has yet to be decided by a Texas court and would require an expensive legal battle which may take the form of multiple appeals to higher courts. Until then, it is likely that such cases will be prosecuted and plead out when they arise.
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