After giving the green light in 2019, Texas Senate is looking to review, revise hemp law

Lt. Gov. Dan Patrick is looking to crack down on intoxicating products derived from hemp, but the limited scope of an inquiry to alter those regulations ahead of next year's legislative session might be in neglect of broader concerns facing Texas' developing hemp industry.

In a list Patrick released last month to give senators a set of legislative directives for the remainder of the year, the Senate's leader is asking the chamber to revisit a decision that in 2019 allowed the initial sales of cannabis-derived products in Texas as a new hemp industry in the state emerged.

Specifically, Patrick wants lawmakers to craft a ban on intoxicating products derived from delta-8 and delta-9, cannabinoids found in hemp that have a similar, albeit lesser, effect to that of THC, the cannabinoid responsible for the effects of marijuana.

With the state's decision to allow for a hemp industry and introduce Texans to hemp-derived products, except for those intended for smoking, an overarching lack of regulation has allowed for an explosion of delta-8 and delta-9 products with new cannabinoids and products continuously hitting shelves in gas stations and smoke shops across the Lone Star State.

"When you don't have a thoughtful, large bill passing to regulate cannabis, you get a hot mess, gray markets that we have all over Texas," said Susan Hays, an attorney with a focus in the hemp and marijuana space. "So it's very much the result of policy choices by the leadership."

Hays argues that a lack of industry guidelines has led some to avoid Texas as a hemp destination, all while a lack of clarity on which products are legal has been unfair to both businesses and consumers.

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The confusion comes in part as regulations written in Texas' code focus on delta-9, with no mention of delta-8 and the many other THC-adjacent cannabinoids that are increasingly being used to manufacture intoxicating products.

Additionally, as products cannot be manufactured for smoking in Texas, smoking devices made in other states that meet similar testing and regulatory requirements as set by the federal government can be sold in Texas.

Hays said Patrick's request of lawmakers is confusing as it seeks an all-out ban on the products but simultaneously looks to alter marketing requirements to deter children from using cannabinoid-based products.

The focus on delta-8 and delta-9 is also an indicator that the state is simply lagging in regulating hemp-derived intoxicants, Hays said.

"That's so 2021 compared to what's out in the marketplace now," Hays said.

Outside of addressing the ingestible side of hemp derivatives, the largest sect of the state's hemp industry has focused on producing fiber hemp, which is grown to be converted into usable materials for building construction and other industries.

As the federal government opened the door for hemp production in 2018, Texas followed suit in the next year, resulting in a rush of people looking to jump into the budding industry, with many making their foray into farming to take advantage of what looked to be a new cash crop, said Calvin Trostle, a Texas A&M AgriLife Research & Extension agronomist and professor.

"There's never been anything that I've worked with in my career where so many people were willing or wanting to grow hemp who had never grown anything before," Trostle said.

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But, in addition to the routine challenges that come with planting a crop — such as drought, pests and seed quality — a 0.3% limit of traceable delta-9 that is allowed to be grown in hemp has been a real consideration for farmers as they have tried to fall below that standard to avoid destroying their crops.

Trostle said the federal 0.3% threshold is far below any level that would allow for hemp to cause any intoxicating effect, which would not come into play until the plant contained well above 10% of an intoxicating cannabinoid.

Texas Agriculture Commissioner Sid Miller said the federal threshold of 0.3% is a difficult bar for farmers to meet and that regulators could "bump that up safely" without approaching the intoxicating effects of the plant.

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"The hemp at 2 or 3% THC is … still not going to give you a high or a buzz," Miller said of raising the cannabinoid threshold for fiber hemp. "I think it's artificially a little low of a target."

As for the rest of the industry concerns, Miller, whose agency oversees the state's hemp production, said that initial interest in the business has fallen off considerably from earlier days, which saw a surplus of hemp produced, leading to a drop in the commodities' price.

"We set up the program from scratch, no money from the Legislature. We kind of got a bare-bones operation," Miller said. "It's not something we spend a lot of assets or money on, because it doesn't generate that much."

Miller said he is not opposed to Patrick's request to ban delta-8 and delta-9 products, saying that if it is Patrick's will, it's "fine and dandy."

While some are concerned with the percentages, Kyle Bingham, a hemp farmer and president of the Texas Hemp Growers Association, said the threshold requirements on cannabinoids are a lesser issue than overlooked regulatory infrastructure and lacking paydays.

"The point three level has nothing to do with it," Bingham said. "In reality, it's the fact that farmers didn't get paid. That's the issue."

Because of the drop in price and influx of product in the early days of the hemp industry, branching out to find alternative uses for fiber hemp has been a focus, resulting in some farmers looking to provide animal feed out of their yields.

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But that has also led to "going around in circles" over research questions on what is the allowable hemp concentration to ensure that cannabinoids are not passed on to animals and their byproducts, Bingham said.

"We just need strong, common-sense and safe regulations for all hemp products," Bingham said.

"I'd love to see the Legislature earmark some money into getting this done right. Unfortunately, what we're seeing is that they are leaving a lot of industry to fund the research and figure this out."

Bingham's concerns are not yet on the table for the Senate Committee on State Affairs, which is the panel Patrick tasked to "examine the sale of intoxicating hemp products in Texas."

With a hearing on the delta-8 and delta-9 ban scheduled for May 29, the committee, led by Sen. Bryan Hughes, R-Mineola, will look to make recommendations ahead of the next legislative session, beginning in 2025, to "further regulate the sale of these products" and suggest legislation "to stop retailers who market these products to children."

Patrick and Gov. Greg Abbott did not respond to American-Statesman requests for comment on their policy stances on the hemp issue and further regulating the industry.

With the broader concerns and uses of hemp not currently up for debate, Hays, the hemp attorney, said that Patrick "doesn't seem to get that the market is just leapfrogging farther and farther ahead of the state."

"And the state has to up its regulation game, or it'll never catch up," Hays said.

This article originally appeared on Austin American-Statesman: Will Lt. Gov. Dan Patrick and the Senate ban hemp-derived THC products?