This page will provide you with information about CBD and the developing industrial hemp program.
Cannabidiol (CBD) is a substance derived from the cannabis plant that does not have the psychoactive properties that tetrahydrocannabinol (THC) does. Hemp is defined in Section 121.001 of the Texas Agriculture Code:
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.
In the past several years, there have been changes in how CBD is viewed under the law at both the state and federal levels. At the federal level, the 2018 Farm bill went into effect on December 20th, 2018. House Bill 1325, the Texas bill that created Chapters 121 and 122 of the Texas Agriculture Code, became effective on June 10th, 2019.
Note A lawsuit is currently underway to determine the legal status of Delta-8 in Texas.
Consumable hemp products with less than 0.3% Delta-9 tetrahydrocannabinol THC are permitted under Chapter 443 of the Texas Health & Safety Code. The Texas Department of State Health Services recently updated its consumable hemp program guidance to clarify that Delta-8 is not legal by classifying Delta-8 as a Schedule I controlled substance:
Texas Health and Safety Code Chapter 443 (HSC 443), established by House Bill 1325 (86th Legislature), allows Consumable Hemp Products in Texas that do not exceed 0.3% Delta-9 tetrahydrocannabinol (THC). All other forms of THC, including Delta-8 in any concentration and Delta-9 exceeding 0.3%, are considered Schedule I controlled substances.
However, a temporary injunction has removed Delta-8 from the list of controlled substances while the case proceeds.
Delta-8 tetrahydrocannabinol (also called Delta-8 THC or Delta-8) is a substance derived from the cannabis plant. It is similar to Delta-9 tetrahydrocannabinol (THC), the psychoactive compound in marijuana. Delta-8 is typically made from CBD derived from low-THC hemp.
Delta-8 falls under "tetrahydrocannabinols" listed as number 31 in the list of Schedule I controlled substances. The DSHS Commissioner adds a substance to the Schedule I controlled substances list if it has:
The designation for Schedule I substances is in Section 481.035 of the Texas Health & Safety Code. Offenses and penalties related to the possession or manufacture of controlled substances are found in Chapter 481, Subchapter D of the Texas Health & Safety Code.
Delta-8 may be viewed differently at the federal level. In August of 2020, the federal Drug Enforcement Agency updated its scheduling regulations to remove hemp from the list of controlled substances, provided it has less than 0.3% Delta-9 tetrahydrocannabinol THC by dry weight. The DEA made the changes in order to adhere to the Agriculture Improvement Act of 2018 (also called the 2018 Farm Bill). These changes may make other types of tetrahydrocannabinols (THC) like Delta-8 legal under federal law.
According to an article in the Houston Chronicle, "Any time the DEA changes its rules on controlled substances, individual states are allowed to choose whether or not to adopt the changes or stick with their existing rules." Texas chose not to adopt the federal rules to legalize Delta-8.
In 2019 the Texas Legislature paved the way for a state industrial hemp program. This program allows people to grow industrial hemp (defined as "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.")
There are several state agencies that have adopted and amended rules and regulations in order to administer the new industrial hemp program. We have provided links to agency updates on their progress below.
For a detailed explanation of the developments in the law surrounding CBD, please see the article entitled "CBD: The Evolving Landscape of Laws and Regulations" written by Elizabeth F. Griffin in the State Bar of Texas's 2019 Food and Drug Law Continuing Legal Education course. Ms. Griffin explains what CBD is and cites to relevant state and federal resources on the topic.
The Texas A&M AgriLife Extension Service Agricultural Economics Department and the Southern Extension Risk Management Education Center have collaborated on a video series overview of major legal and economic issues in the Texas hemp industry. These short videos cover hemp basics, legal considerations, economics and budget, crop insurance, and more.
On March 16, 2020, the Texas Department of Agriculture opened the application process for new licenses to cultivate industrial hemp. To submit an application, visit the link below.
The Texas A&M AgriLife Extension Service also has a quick video explanation of the Texas Hemp Rules licensing and permit process. Find this video embedded below.
The Texas Department of Agriculture and the Department of State Health Services will be responsible for administering and regulating the state's industrial hemp program. For more information about licensure or other hemp-related regulations, please visit their websites.