CBD Oil in Texas: 2021 Legal Status Guide
Just a couple of years ago, the CBD business in Texas was moving at a snail’s pace. No one wanted to touch CBD, buy it, sell it, or even talk about it. Yet, today, CBD oil in Texas is as real, and as legal, as ever.
In fact, people are eager to learn more and CBD stores are popping up all over the state. CBD is becoming increasingly popular and CBD coffees, smoothies, and massages are a new normal for Texans.
However, seeing how state laws and regulations regarding the subject are overly complicated, many Texans are left confused, to say the least. So, to cut to the chase, is CBD oil legal in Texas ? In a nutshell, yes. But, there are still some factors that can make your whole buying experience difficult.
We researched and studied the law and policies, and here’s everything you need to know about Texas laws and CBD oil.
Keep on reading to discover more about the topic!
CBD Texas Law: Marijuana, Hemp, CBD — Are They the Same?
First things first, we need to make a few distinctions. Lawmakers talk about marijuana, hemp, CBD, at the same time, thus people put them all in the same basket, adding to the overall chaos. In further text, we’ll try to explain “in plain English” what all these terms entail, and which ones are legal and illegal.
Now, both marijuana and hemp look and smell the same and come from the same plant family, so we can understand where all the confusion comes from. Yet, they’re not the same.
Essentially, they differ in THC levels (tetrahydrocannabinol — the substance responsible for making you “high”). According to CBD laws in Texas , marijuana has more than 0.3% THC on a dry weight basis, whereas hemp has less than 0.3% THC. Therefore, marijuana use and possession in Texas is illegal , unlike hemp’s.
So, what is CBD then? CBD, or cannabidiol, is but one of about a hundred natural components found in a hemp plant. It can be extracted from the plant in the form of CBD oil, which can then be infused into other products — namely, food and drinks — or taken as is. Hence, when it comes to CBD oil, Texas regulations define it as legal… sort of (please bear with us).
The oil is packed with nutrients, as well as other amino and omega acids that bring you tons of health benefits . However, you should note that the FDA doesn’t approve, regulate, or control CBD products. The only CBD oil that the FDA approves of is Epidiolex — a drug used to control severe epilepsy seizures in children.
The Timeline of Texas CBD Laws
Before we come to the burning question of whether CBD oil is, in fact, legal in Texas, you should know one more thing: Texas has always had a complicated relationship with cannabis. Here’s a simplified timeline of the turbulent history of the Texas cannabis law , so you could better understand what’s happening today.
1915: The El Paso Ban — the first US city to ban cannabis.
1919: Restricted Sale — the possession of cannabis remained legal, but non-medicinal use was labeled a misdemeanor.
1931: Statewide Ban — cannabis possession was banned for the whole state of Texas.
1973: HB 447 — the new CBD oil Texas law classified the possession of up to 2oz of cannabis as a class B misdemeanor (there was a $1,000 fine along with three months of jail time) instead of it being considered a felony like only a couple of years prior.
2007: HB 2391 — instead of an immediate arrest, the possession of up to 4oz of cannabis meant the police could “cite and release”; the same penalties still applied though.
2015: HB 339 — the Texas Compassionate Use Act enabled the use of THC oil for specific epilepsy patients; only low THC oil was allowed (less than 0.5% THC). Other than that, CBD oil remained illegal in Texas .
2019: HB 1325 — industrial hemp with less than 0.3% THC was finally approved for cultivation. Also, both the sale and the possession of hemp-derived CBD products were declared legal.
2019: HB 3703 — the new Texas CBD laws of 2019 also expanded the list of conditions that qualify for the state’s medical cannabis program. The list included conditions such as:
- Multiple sclerosis MS
- Huntington’s disease
- Parkinson’s disease
- Alzheimer’s disease
You should note that medical patients can only use low-THC CBD products, such as vape oils and inhalers, that have up to 0.5% THC.
2020: the state adjusts its laws and includes licensing and testing on the agricultural end (in line with the FDA’s guidelines), and is now handled by the state’s DSHS.
Is CBD Oil Legal in Texas?
Yes! CBD oil for regular use is finally legal in Texas. However, there are two major factors that influence its legality: the source of CBD and the concentration of THC.
CBD oil is completely legal if it’s derived from hemp that has less than 0.3% THC. This concentration of THC isn’t high enough to cause any psychoactive effects.
CBD oil laws in Texas also allow medicinal use of cannabis oil, as well, as long as it has less than 0.5% THC. Please note that this is only legal for medical patients that qualify for the state’s medicinal cannabis program.
House Bill 3703 has determined that qualifying illnesses are the following:
- Seizure disorders
- Multiple sclerosis
- Amyotrophic lateral sclerosis (ALS)
- Terminal cancer
- Incurable neurodegenerative diseases (Alzheimer’s, Parkinson’s, Huntington’s)
CBD oil derived from marijuana has a much higher THC concentration and is therefore illegal for recreational purposes.
CBD Oil in Texas: Possible Law Issues
As good as this new law may sound, its implementation was a bit rocky. CBD users in Texas are still at risk of being detained while their CBD products are examined for their THC concentration. This is mainly due to the field tests that the Texas police uses that are unable to distinguish CBD oil from marijuana.
Just recently, a man spent a month in Amarillo jail for transporting industrial hemp, until the lab results showed that it was, in fact, all legal.
To avoid a CBD oil arrest in Texas , you should always thoroughly research the brand you want to buy CBD products from. Always shop with brands that have public third-party tests proving their oil has less than 0.3% THC and verify the source of the hemp.
Can You Buy CBD Oil in Texas
You can buy CBD oil, but as previously mentioned, you need to be extra careful when choosing a brand. The CBD market is swamped with thousands of brands, all claiming to have the most superb products out there.
To make sure that you’re buying a safe product pay attention to the following:
- Hemp source: hemp sourced from the US is usually the safest, mainly due to the strict agricultural restrictions. Kentucky and Colorado, for example, have the best hemp farms, which grow the plant in the purest way possible. More often than not, their hemp complies with strict CBD Texas laws .
- Extraction process: there are a couple of extraction processes available, yet the CO2 method is the cleanest one out there and produces CBD oil of the highest quality.
- Third-party testing: it’s essential that a CBD company tests all their products in an independent lab. This ensures that the lab results are objective and accurate. Lab sheets should show you the exact purity and potency of your CBD oil.
Where to Buy CBD Oil in Texas
If you need CBD oil to relieve everyday stress and anxiety, for aches and pains, or you just want to improve your overall well-being and wellness, you can look for CBD products in various dispensaries and stores. Texas is bursting with CBD dispensaries, with new ones popping up every day. The majority of them are in larger cities like Houston, Austin, Dallas, San Antonio, Fort Worth, and El Paso.
However, if you need CBD for a far more serious medical issue, you should consult your physician and apply for a medical marijuana card to avoid breaking the laws of CBD oil in Texas .
You can also browse the internet and order your CBD products online.
Can CBD Oil Be Shipped to Texas
Buying CBD products online and having them shipped to your home from another state is perfectly legal if the products are derived from hemp and contain less than 0.3% THC.
Ordering CBD online sometimes has more benefits than buying it in a brick-and-mortar store. Stores may carry only a few brands, whereas online stores offer an abundance of products that are only a few clicks away.
Can I Grow CBD in Texas
House Bill 1325 from 2019 allows the manufacture, production, inspection, and retail sale of industrial hemp in Texas. The production of CBD oil was also allowed by the law.
Still, growing hemp in Texas is not legal until the TDA (Texas Department of Agriculture) submits a state hemp plan to the USDA, which needs to approve it first. Even before sending the state plan to the USDA, the TDA needs to wait for guidance on implementing the procedures that came into effect on October 29, 2019. The application process should begin sometime in 2020, as estimated by the TDA.
The Bottom Line
These are historical moments for Texans and the CBD industry. The market for CBD oil in Texas is growing at a rapid rate since the implementation of the new law, and there’s a great number of CBD companies that offer thousands of high-quality products. We hope that this guide has helped you understand the law a bit better so you can fully enjoy the benefits of CBD.
Are you looking for hemp or CBD oil in Texas, but don't know whether it's legal or how to obtain it? In that case, this article is for you! Read on!
Is CBD Oil Legal in Texas? | Prosecution Depends on Location (2020)
By Benson Varghese
People think since you can purchase CBD at almost any corner store in Texas, that it must be legal. Even elected district attorneys have different opinions about the legality of CBD oil in Texas. In this article we’re going to take a look at the circumstances under which CBD oil is legal and the arguments some prosecutors are making to charge individuals who possess CBD oil in Texas.
The cannabis plant contains over 100 cannabinoids. THC and CBD are the two most commonly discussed cannabinoids. Legislators at both the state and federal level have started recognizing the therapeutic value of CBD and CBD oils, although the legal landscape surrounding CBD oils is far from straightforward for Texans who want use it. Some of the confusion surrounding CBD stems from recent legalization at the federal level and very limited legalization in Texas.
Texas Governor Signs Law Legalizing Hemp Production, CBD
On June 10, 2019, Governor Greg Abbot signed a new law making CBD legal in Texas as long as it contains .3 percent or less THC. The law, which was House Bill 1325, went into effect on September 1, 2019, enacted the following:
- Defined hemp under the Agriculture Code as the cannabis plant and all derivates, extracts, cannabinoid, isomers, etc. that has no more that 0.3 percent THC on a dry weight basis.
- Required a memo of understanding between the Department of Agriculture and Department of State Health Services requiring DSHS to cooperate with the Department of Agriculture in developing a hemp production plan.
- Amended the Health and Safety Code to specifically exclude hemp from being a controlled substance. It also specifically exclude THC found in hemp.
- Excluded hemp from the definition of marijuana.
Will You Be Prosecuted for Possession of CBD Oil?
Whether you will be prosecuted for possession of CBD oil in Texas depends entirely upon where you are located. In North Texas, Denton County is not prosecuting CBD oil only cases, Dallas County is “not aggressively prosecuting” CBD oil cases, and the Collin County District Attorney is still deciding. Tarrant County, on the other hand, is prosecuting CBD oil cases. As we will discuss later, officials can chose to prosecute CBD oil that contains THC for Possession of a Penalty Group 2 Substance in Texas. While all elected prosecutors understand that theory of prosecution, the reality is that CBD oils usually contain less than .3 percent of THC, if they contain any at all.
Tarrant County’s position has been to prosecute cases with THC. Additionally, the First Assistant District Attorney recently stated to a local news organization that Tarrant County will prosecute possession of CBD oil not containing THC as a misdemeanor offense. (More on this later.)
Where is CBD Oil Legal in Texas?
CBD Oil is legal everywhere, as long as it falls under the .3 percent threshold.
Is CBD Oil Illegal Federally?
CBD is no longer illegal under federal law. On January 1, 2019 – with the passage of the Agricultural Improvement Act of 2018 (also known as the Farm Bill Act) – it became legal to grow or possess hemp under federal law as long as it has less than .3 percent THC.
CBD oil is a derivative of the hemp plant, therefore making it legal under federal law as long as it has less than .3 percent THC.
It’s important to point out that cannabis products (hemp-derived or otherwise) marketed with a claim of therapeutic benefit must be approved by the FDA. (Source: FDA)
CBD Prosecution Texas
Prosecutors in some jurisdictions, like Tarrant County, will have CBD tested for the presence of THC. If there is any detectable amount of THC, they are filing these cases as Possession of a Controlled Substance – Penalty Group 2 under Texas Health and Safety Code 481.103 and 481.116.
Like marijuana, prosecution based on possession of CBD products in Texas is largely a function of where you are, not what you possess.
We made an open records request to the Tarrant County District Attorney asking for the number of CBD oil cases that were prosecuted by her office.
While we continue to analyze those numbers, we did obtain information from the Office of Court Administrations that shows the effect an elected District Attorney can have on the cases pursued by the office.
For example, prosecution of misdemeanor marijuana cases in Tarrant County has increased seven times the state average since the beginning of the current district attorney’s administration, exceeding even more conservative neighboring jurisdictions. Not to mention, both the Republican governor and the Texas Republican platform support decriminalization of marijuana.
CBD Oil as a Misdemeanor
The Texas Controlled Substances Act is codified under Texas Health and Safety Code Chapter 481. Health and Safety Code Section 481.032 says that the Commissioner of State Health Services is to set out what substances are deemed Controlled Substances in Texas under Schedules I through V. Chapter 481.034 retains the right for the legislature to remove substances from the Controlled Substance list. In May of 2017, the Texas Commissioner of the Department of State Health Services, Dr. John Hellerstedt, ordered “that the substance Marijuana Extract, meaning an extract containing on or more cannabinoids that has been derived from any plant of the genus Cannabis, other than the separated resin (whether crude or purified) obtained from the plant) into Schedule I.Health and Safety Code Section 481.119(b) makes possession of a “controlled substance listed in a schedule by an action of the commissioner…but not listed in a penalty group” a Class B misdemeanor offense.
Theories for CBD Prosecution in Texas
Possession of CBD Oil is specifically distinguished from the possession of marijuana in Texas. Texas Health and Safety Code Section 481.002 excludes oils and resins from the definition of marijuana.
If you go through Chapter 481 of the Health and Safety Code, you will find substances like THC (Tetrahydrocannabinol) and dronabinol (synthetic marijuana). What you won’t find in Chapter 481 is “cannabidol.” You also won’t find any of the other descriptors of cannabidol found on the Open Chemistry Database maintained by the National Center for Biotechnology Information or in any penalty group in Texas.
As of May 2017, however, you will find the addition of “Marihuana Extract” in the Texas Register [PDF] (not the Health and Safety Code) by the order [PDF] of the Commissioner of the Department of State Health Services. That order is what the Tarrant County District Attorney is using as a basis to prosecute CBD oil possession cases at the misdemeanor level.
Prosecution of CBD Oil in Tarrant County
An NBC 5 investigation first brought the prosecution of CBD oil in Tarrant County to light. In an interview with NBC 5, the Tarrant County First Assistant District Attorney said Tarrant County is “going to enforce the law.” When he says that any amount of CBD oil is illegal – and a misdemeanor offense if it does not contain THC – the law he is referring to is not one passed by Texas legislators. Texas legislators have not specifically made cannibidiol a controlled substance. A medical doctor, who serves as the DSHS Commissioner, added cannibidiol to the list of controlled substances.
After the NBC5 investigation broke and the interview aired, the elected District Attorney released a statement that she has “not spent and do[es] not expect to spend significant resources on cases involving CBD oil.”
We are unaware of any other district attorney in Texas that is prosecuting misdemeanor CBD oil under this theory. According to the NBC 5 investigation, no other county in North Texas is prosecuting CBD oil possession as aggressively as Tarrant County.
Have Recent Amendments Made CBD Oil Legal?
Effective April 5, 2019, Dr. Hellerstedt amended the listing for marijuana and THC to fall in line with the federal Farm Bill Act. [PDF]
The changes are as follows: First, “[t]he term marihuana does not include hemp as defined in section 297 A( I) of the Agricultural Marketing Act of l 946.” Second, THC no longer includes THC contained in “hemp (as defined under section 297A( I) of the Agricultural Marketing Act of 1946)”However, “marijuana extract” still means “an extract containing one or more cannabinoids that has been derived from any plant of the genus Cannabis other than the separated resin (whether crude or purified) obtained from the plant.”As a result, the April 5, 2019 amendment only added more confusion for citizens, law enforcement agents, and prosecutors across the state. Additionally, this amendment is not going to keep Tarrant County from continuing to file charges.
Felony Prosecution of CBD Oil in Tarrant County
In Tarrant County, if the CBD contains THC, the case is the filed as a felony as a Penalty Group 2 illegal substance. This penalty group is generally reserved for hallucinogens, their salts, isomers, and salts of isomers.
What most people don’t realize is the person charged with Possession of a Penalty Group 2 substance is charged with the entire weight of the substance, including “adulterants or dilutants.” In other words, a small eye dropper bottle of CBD oil with half an ounce of liquid could contain a second-degree felony amount of drugs. That means the person is facing 2 to 20 years in prison and up to a $10,000.
Individuals possessing CBD oil, which is sold and marketed as being free of any psychoactive ingredients, are being punished as though it were equivalent to PCP, MDMA, or Ecstasy, or other hallucinogenic Penalty Group 2 substances.
What is CBD Oil?
CBD is short for Cannabidiol. Like THC, it is one of 85 cannabinoids present in the cannabis plant. CBD Oil contains high levels of CBD and trace amounts of THC. The lack of high levels of THC makes CBD Oils non-psychoactive.
What is THC?
THC is short for Tetrahydrocannabinol. This is one of many chemical compounds found in cannabis. THC is responsible for the psychological and euphoric effects of the drug. In other words, it is what makes people feel “high” when they smoke or ingest marijuana.
How is CBD Different From THC?
The short answer is, unlike THC, CBD is not psychotropic. Consequently, it doesn’t result in a euphoric high the way THC does.
The longer answer is far more interesting. It is important to first distinguish marijuana from hemp. Scientifically, both marijuana and hemp come from the “cannabis sativa” plant, according to the USDA. Marijuana, though in the same scientific family as hemp, is a much smaller plant. Hemp, the taller and more fibrous version of the sativa plant has a long history in the United States. In fact, George Washington grew hemp on Mount Vernon.
Over years of breeding, the cannabis plant was developed to have high levels of THC. It is this breeding to elevate THC levels that has spurred the illegal marijuana market. Because CBD comes from an entirely different plant than marijuana, its chemical properties are different.
THC is found in large quantities in cannabis, or what most people think of as the marijuana plant. Unlike cannabis, or marijuana, hemp contains low concentrations of THC. CBD Oils are generally made from the hemp plant so they contain high levels of CBD and trace levels of THC. As a result, CBD provides a less controversial alternative to THC for health benefits.
What is the Compassionate Use Act?
In 2015, Governor Greg Abbott signed into law what’s known as the Texas Compassionate Use Act, which allows the use of CBD oils to treat seizures caused by intractable epilepsy. The Act legalizes oils containing CBD for treatment of epilepsy, as well as other chronic medical conditions for those who have not responded positively to use of federally approved medications.
The Act authorizes the Department of Public Safety to license dispensing organizations, which function similar to compounding pharmacies. Only neurologists and epileptologists are able to offer prescriptions for CBD oil. While the law was implemented in 2015, access to CBD was delayed until 2017 to allow for additional time to create a system to ensure that distribution is confined to genuine medical necessity along with a detailed registry identifying doctors and dispensaries.
Selling CBD Oils without FDA Approval
Under current federal law, unapproved sellers of CBD Oils who describe the medical benefits of CBD Oils should at the very least expect to get a Cease and Desist letter from the FDA with language along the lines of:
Your product is not generally recognized as safe and effective for the referenced uses and, therefore, the product is a “new drug” under section 201(p) of the Act [21 U.S.C. § 321(p)]. New drugs may not be legally introduced or delivered for introduction into interstate commerce without prior approval from the FDA, as described in section 505(a) of the Act [21 U.S.C. § 355(a)]; see also section 301(d) of the Act [21 U.S.C. § 331(d)]. FDA approves a new drug on the basis of scientific data submitted by a drug sponsor to demonstrate that the drug is safe and effective.
Furthermore, your product is offered for conditions that are not amenable to self-diagnosis and treatment by individuals who are not medical practitioners; therefore, adequate directions for use cannot be written so that a layperson can use this drug safely for its intended purposes. Thus, ______ is misbranded within the meaning of section 502(f)(1) of the Act, in that its labeling fails to bear adequate directions for use [21 U.S.C. § 352(f)(1)]. The introduction of a misbranded drug into interstate commerce is a violation of section 301(a) of the Act [21 U.S.C. § 331(a)].
What Can CBD Oil be Prescribed for in Texas?
Studies show CBD oil has promise in the following areas: anxiety relief, anti-seizure, and pain relief.
However, in Texas, the only approved treatment at this time or the reduction or elimination of seizures. Notably, Florida passed a similar law in 2014, but in 2016, voters amended the law to allow for full THC forms of cannabis for those suffering from a broader variety of medical conditions, such as PTSD, MS, cancer, and HIV. Texas does not allow CBD oil for Parkinson’s patients.
In May of 2017, the Texas Department of Public Safety awarded licenses to produce, process, and dispense CBD oil to three companies. These companies, Cansortium Texas, Compassionate Cultivation, and Surterra Texas, each pay a licensing fee in order to operate facilities to produce and dispense CBD oils under the Compassionate Use Act.
Are THC Oils and Waxes Legal in Texas?
No. As of August 2017, possessing THC oil is not only a crime but also considered a more serious crime than possessing marijuana in its traditional form. In Texas, it is a felony to possess THC oil or wax. The seriousness of the felony varies based on the amount of THC oil possessed. For example, possession of less than one gram of THC oil is a state jail felony that is punishable by six months to two years in a state jail facility and a fine of up to $10,000.
Possessing one to four grams of THC oil is a third-degree felony, punishable by 2 to 10 years in prison and a fine of up to $10,000.
Possession of four to 400 grams of THC oil or wax is a second-degree felony. In Texas, a second-degree felony is punishable by 2 to 20 years in prison and a fine of up to $10,000.
Finally, possession of more than 400 grams of THC oil or THC wax is classified as a first-degree felony. This is the most serious felony for which someone can be charged for possessing THC oil or wax. This crime is punishable by 5 to 99 years in prison and up to a $10,000 fine.
Changes in Texas Law
House Bill 2107 was brought during the 2017 legislative session with a number of vocal supporters. The bill sought to remove the “low THC” restriction and amend the law to allow for “medicinal marijuana.” It also sought to expand the types of conditions that can be treated with cannabis by including post-traumatic stress disorder and terminal cancer. Finally, the bill sought to modify the language, from requiring a doctor’s prescription to requiring a doctor’s recommendation. This change intended to address concerns about the legality of physicians prescribing something prohibited by federal law. Despite having 77 sponsors and co-sponsors, 29 of whom were Republican, the bill died in committee. Given strong support, as well as national trends, changes in Texas law are likely to occur in the future.
The complicated nature of the laws governing CBD oils makes the possession of CBD oil very defensible, especially if the CDB oil has no detectable amount of THC. If you have been arrested for an offense arising from the possession of CBD oil in North Texas, contact us at (817) 203-2220. You can also contact us online.
Is CBD Oil legal in Texas? Federal laws have recently changed. Do you know if it is legal to purchase or use CBD Oil in Texas?