As of March 31, it became illegal to sell or manufacture smokeable hemp products in Texas, but legal experts now say gray areas in state and federal law make it likely customers will simply begin ordering those items from outside the state.
At the order of Gov. Greg Abbott, the Department of State Health Services earlier this spring imposed sweeping regulations on the state’s hemp industry, including a ban on smokable THC-containing products, including flower and pre-rolled joints.
However, attorneys told Austin public radio station KUT the new rules don’t apply to possession of smokable hemp, which remains legal under both state and federal law. It’s also unlikely police and district attorneys in the state’s big metro areas — which have largely given up on pursuing low-level cannabis possession cases — want to get involved, according to the report.
“Whether anyone can be criminally prosecuted for buying products from out of state is still going be doubtful and difficult,” cannabis attorney and lobbyist Susan Hays told KUT. “Most prosecutors, many cops, certainly the majority of the people living in Texas are over this idea of criminalizing a plant.”
State regulators pushed back at Hays’ claim, saying any hemp product sold and shipped to a Texas customer must abide by the new state rules.
“There is no carveout for mail order,” DSHS spokesperson Lara Anton told KUT.
Even so, experts question just how the state would be able to enforce its ban.
For one, the 2018 U.S. Farm Bill legalized hemp nationwide and clearly bars states from blocking hemp shipments and transportation. Further, companies are already shipping THC-infused hemp products across state lines to Texas customers.
“I would venture to say that anybody who is wanting to place an order for a product that will no longer comply with the new rules will probably not have any qualms finding a company to ship it to them from out of state,” Andrea Steel, an attorney with Houston’s The Banks Law Firm told KUT.
The Texas Department of Public Safety, which tests cannabis for law enforcement agencies statewide, didn’t respond to the radio station’s request for comment.
However, an Austin Police Department official told KUT that officers rely on product packaging when determining whether item is considered a legal hemp product or illegal cannabis. If the packaging shows the Delta-9 THC content is under 0.3%, a person is allowed to keep the product.
Even so, Austin PD doesn’t usually file charges for small amounts of weed possession — and neither do police in San Antonio. Indeed, a number of DA’s offices around the state have deprioritized pursuing small possession cases and don’t want to bother with testing to determine whether police have confiscated pot or hemp.
Just the same, Texas hemp smokers may not need to make an immediate decision whether they’re willing to take the risk of turning to mail-order suppliers.
Texas’ $8 billion hemp industry is expected to sue for a temporary restraining order pausing the new rules, according to KUT. Assuming that goes into effect, attorneys would prepare a longer-term injunction to keep the state’s prohibition at bay while a full-fledged court challenged runs its course.
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