Is CBD Legal or Illegal in Texas?

With the passing of SB 339 in 2015, otherwise known as the “Texas Compassionate Use Act,” Texas joined more than three quarters of the states in establishing a medical marijuana program. However, many are unaware that prior to 2015, derivatives of marijuana were legal in the state. example-2-300x159

When Marijuana isn’t Marijuana

Under Texas law, marijuana is defined in the Texas Health and Public Safety Code as:

“[t]he plant Cannabis sativa L., whether growing or not, the seeds of that plant, and every compound, manufacture, salt, derivative, mixture, or preparation of that plant or its seeds.”[1]

This definition is modeled after the 1970 Controlled Substances Act’s definition of marijuana. Like many state criminal statutes, Texas adopted a mirror version of federal law. However, much like the model definition under federal law, the Texas law has exceptions to the definition of marijuana. These exceptions are as follows:

The term does not include:

  • (A)  the resin extracted from a part of the plant or a compound, manufacture, salt, derivative, mixture, or preparation of the resin;
  • (B)  the mature stalks of the plant or fiber produced from the stalks;
  • (C)  oil or cake made from the seeds of the plant;
  • (D)  a compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, fiber, oil, or cake; or
  • (E)  the sterilized seeds of the plant that are incapable of beginning germination.[2]

These exceptions exist because the Federal Controlled Substance Act was designed to outlaw growth, use, or possession of marijuana. However, at the time, the law was designed to outlaw the use of products derived from imported industrial hemp. The exceptions under the definition of both state and federal definitions of marijuana are the reasons we can currently buy, use, and eat hemp products that are imported from other countries.

CBD Exempt from the Definition

Cannabidiol or “CBD” is one of 113 active cannabinoids identified in marijuana. CBD is considered to have a wide range of medical applications, and was the subject of Dr. Sanjay Gupta’s “Weed” documentary series, where he advocated for the legalization of medical marijuana. CBD can be extracted from almost any part of the marijuana plant, and is not known to create the euphoric “high” of other active chemicals in marijuana such as Tetrahydrocannabinol (THC).
Currently, there are thousands of companies across the US, in recreational and medical states, who specialize in refining marijuana. Specifically, these companies use exempt marijuana components to create concentrates of pure CBD. It could be argued that these concentrates are legal to possess, use, sale, and transport so long as they are derived from parts of marijuana that are exempt from both state and federal definitions.

Potential Risk

However, just because CBD could be argued as legal under federal and state law doesn’t necessarily mean you are exempt from criminal allegations in Texas. In 2015, Texas passed an extensive, synthetic marijuana law that dramatically expanded the list of chemicals declared illegal. Among the targets of this expansion was synthetic marijuana. Texas amended its Health and Safety Code to include new definitions of banned chemicals related to THC. The relevant statutory additions were as follows:

Tetrahydrocannabinols, other than marihuana, and synthetic equivalents of the substances contained in the plant, or in the resinous extractives of Cannabis, or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacological activity such as:

  • delta-1 cis or trans tetrahydrocannabinol, and their optical isomers;
  • delta-6 cis or trans tetrahydrocannabinol, and their optical isomers;
  • delta-3, 4 cis or trans tetrahydrocannabinol, and its optical isomers; or
  • compounds of these structures, regardless of numerical designation of atomic positions, since nomenclature of these substances is not internationally standardized;[3]

and

Cannabinol derivatives, except where contained in marihuana, including tetrahydro derivatives of cannabinol and 3-alkyl homologues of cannabinol or of its tetrahydro derivatives, such as:

  • Nabilone;
  • HU-210; and

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.

Knowledge is Power

Although CBD may be argued to be legal in Texas, obstacles still remain to unhindered use and sale. The most important tool you can have is knowledge. If a distributor is in compliance with FDA regulations, the substance is derived from an exempt category, and the substance is unadulterated, you may argue that technically it is in compliance with Federal and State laws. However, you must be willing to prove that in court, and be willing to fight for your innocence in the face of possible overzealous law enforcement and prosecutors.

Written by Hunter White

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Gilbert Garcia has been Passionately Pursuing Justice for over 30 years and founded The Gilbert G. Garcia Law Firm in 2008. The Gilbert G. Garcia Law Firm is a boutique law firm, specializing in Criminal Defense. Gilbert represents adults and juveniles accused of a crime and who have with a felony, misdemeanor or record cleaning case. Conveniently located on the courthouse square to serve Montgomery and Walker Counties. Gilbert became Board Certified in Criminal Law by the Texas Board of Legal Specialization in 1989. The Gilbert G. Garcia Law Firm is located at 220 N. Thompson St., Suite 202, Conroe, TX 77301.  www.ggglawfirm.com

[1] Tex. Health & Safety Code § 481.002 (LexisNexis, Lexis Advance through the 2015 regular session, 84th Legislature)

[2] Tex. Health & Safety Code § 481.002 (LexisNexis, Lexis Advance through the 2015 regular session, 84th Legislature)

[3] Tex. Health & Safety Code § 481.103 (LexisNexis, Lexis Advance through the 2015 regular session, 84th Legislature)

[4] Tex. Health & Safety Code § 481.1031 (LexisNexis, Lexis Advance through the 2015 regular session, 84th Legislature)