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A Growing Problem: Distinguishing Between Hemp and Marijuana under Texas Law

The laws surrounding hemp and marijuana have become increasingly convoluted in recent years. What’s legal in one state isn’t necessarily legal in another. Then last year, President Trump signed the 2018 Farm Bill into law. The bill legalized hemp products federally and gave the primary authority to the individual States to develop State plans to regulate the production and sale of hemp and hemp products.

The Federal law differentiates between marijuana, which remains largely illegal, and hemp, which has now become legalized. The distinction is delineated by tetrahydrocannabinol (THC) content. If a plant or product contains a concentration of higher than 0.3% THC, then it is considered marijuana. If a plant or product has 0.3% THC or lower, then it is considered hemp and subject to State regulation.

During the 2019 legislative session, the Texas legislature passed H.B. 1325, which took effect earlier this year. Like the Federal regulations, under Texas law, the distinction between marijuana and hemp is based on the same 0.3% THC content standard. In Texas, marijuana remains illegal while hemp is legal (albeit subject to regulations).

While the distinction between the two is simple enough, a very real logistical problem has arisen from the new legislation. District Attorneys around Texas are now faced with the difficulty of proving whether a plant is marijuana, which remains illegal in Texas, or hemp, which is now legalized, though subject to numerous regulations. Many state labs are capable of performing tests which will show whether or not a plant or substance contains THC. However, the majority of these testing capabilities are on a simple pass or fail basis. In other words, the test shows whether a product contains any THC, or no THC at all. The majority of testing labs do not have the ability to test for the actual concentration of THC to determine whether it is above the 0.3% threshold. Many cities and counties viewed this as a difficult evidentiary burden to overcome. There are some private labs which can test for THC concentration, but currently this is an expensive process, which for some local agencies, has become cost-prohibitive.

In July of 2019, Texas Attorney General Ken Paxton along with Governor Greg Abbot, Lt. Governor Dan Patrick and House Speaker Dennis Bonnen, sent out a directive to Texas District Attorneys and County Attorneys urging them to continue to prosecute marijuana cases, and to begin prosecuting cases involving hemp in which a person has violated the State hemp regulations. Notably, under HB 1325, while hemp itself is legalized, under Texas law it is illegal to transport hemp without a State approved shipping certificate. Complicating the situation is the fact that no such shipping certificate exists, since the State regulations have yet to be fully formulated. Under the AG’s directive, if someone is transporting hemp without a certificate, they are subject to a fine of up to $500.

“This regulation of hemp did not abolish or reduce punishment for the possession of marijuana, which remains illegal under state law.”

State and Local law enforcement were urged to continue prosecuting marijuana cases based on circumstantial evidence while new labs and tests are being developed to determine THC content in a more cost efficient manner.

The USDA plans to release rules for state hemp programs in Fall of 2019. The Texas Department of Agriculture must then submit a plan to the US Department of Agriculture before the State can issue licenses to grow hemp in Texas, or issue certificates to transport hemp in Texas. It will likely be 2020 before there are clear regulatory guidelines in place regarding growing or transporting hemp in Texas.

Please do not rely on this article as legal advice. We can tell you what the law is, but until we know the facts of your given situation, we cannot provide legal guidance. This website is for informational purposes and not for the purposes of providing legal advice. Information about our municipal law practice can be found here.

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