Texas Senate Passes Bill To Criminalize Most Consumable Hemp Products, Sending It To House

The Texas Senate has now formally pass a bill that would outlaw consumable hemp products with any detectable amount of THC—even as the governor, who recently vetoed similar legislation during the regular session, continues to call for the state to regulate rather than ban the products outright.

Senators voted 21–8 to approve SB 5, from Sen. Charles Perry (R), on third reading Friday, two days after advancing the measure on second reading. With the body’s sign-off, the proposal now proceeds to the House, where companion bill HB 5 has also been filed as part of an ongoing special legislative session.

“I’m not criminalizing something. This is already illegal,” Perry said before the final Senate vote, arguing that the hemp industry is using a “loophole” it fabricated to sell intoxicating products. “Pot has been illegal in this country for since the 30s. It’s illegal in the state today. So I’m not criminalizing anything that’s not already illegal.”

Other senators argued that it would be better to enact regulations than prohibition.

“I don’t think a ban is the right solution,” said Sen. Nathan Johnson (D). “A ban on hemp-derived THC products amounts to criminalization of something that is widely used recreationally by thousands and thousands and thousands of Texans.”

“What we should be doing is decriminalizing the social recreational use of marijuana for those who choose to use it, and decriminalizing the use of hemp by regulating it,” he said. “I do think that we have the ability as a state to regulate it. I do think that revenue from taxation of hemp-derived THC can be used to promote the very law enforcement we’re going to need in order to run a responsible regulatory regime.”

Sen. José Menéndez (D) said he appreciated that Perry and supporters of the ban want to “make sure that people, especially children don’t get hurt.”

But “I also worry about the criminalization in your bill. I think that every single arrest, every lab test, every court date caused by the new offenses of this are going to come, potentially, at the expense of focusing on other crimes,” he said.

“Cannabis has been around for thousands of years,” Menéndez pointed out. “It’ll just relocate, go underground, much like alcohol did during Prohibition… I think this bill is going to push back some people back to opioids… We can’t legislate common sense. We can’t legislate morality.”

As lawmakers consider banning consumable hemp products with any detectable amount of cannabinoids aside from CBD and CBG—which Perry has said are demonstrably nonintoxicating—others are calling for the state to instead regulate products with relatively small amounts of THC.

At a press conference Wednesday, for example, a group of Democratic state senators introduced two new cannabis-related bills, including one that would regulate the hemp market, allowing adults 21 and older to purchase hemp products containing no more than 5 mg of THC per serving.

A second new bill would effectively legalize cannabis for adult use by removing criminal penalties for possession of up to two ounces of marijuana on a person and up to 10 ounces in a single household if it’s secure and out of sight. Cultivation of up to six plants, only half of which could be mature, would also be legalized.

Gov. Greg Abbott (R), who during the state’s regular legislative session this year vetoed a similar hemp product ban, SB 3, has also backed the idea of limiting THC potency and prohibiting sales to minors rather than outlawing products entirely.

“We want to make sure adults still have the liberty to be able to have access to non-intoxicating hemp-based products,” Abbott said in an interview with The Texan, adding that “as long as

are below three milligrams of THC content, they are non-intoxicating.”

“I’m not in favor of a total ban,” he said, adding that he does support restrictions on synthetic cannabinoids and youth access to hemp products.

“I am, to be clear, in favor of a ban for those under the age of 21,” the governor explained. “I am in favor of a ban of any type of synthetic that can be added to these products that would make the product more dangerous. I am in favor of a ban of any hemp-based product that reaches an intoxication level, and that is more than three milligrams of THC.”

As Abbott has done in other interviews around the hemp bill, he again gave a somewhat confusing explanation of what he views as allowable THC limits in hemp, variously saying there should be a “three percent” or “three milligram” cap, which is a meaningful difference.

On the House side, meanwhile, the sponsor of HB 5—which is currently identical to SB 5—has said that he intends the bill’s language to be “a starting point,” suggesting future changes would be made based on feedback to the proposal.

“We will hear many hours of testimony and allow that testimony to inform our future direction and decisions,” Rep. Gary VanDeaver (R), who chairs the House Committee on Public Health—where HB 5 will be first considered—wrote in a recent letter to the panel’s other members.

Under the current proposal, consumable hemp products with any amount of THC—or any other cannabinoid besides CBD and CBG—would be illegal. Even mere possession would be punishable as a Class B misdemeanor, carrying up to 180 days in jail and a $2,000 fine.

Some advocates are hopeful that either SB 5 or its House counterpart could see revisions as they make their way through the legislative process—either to affirmatively regulate the hemp market or to at least ease some of the criminal penalties on individuals found in possession of the affected products.

Heather Fazio, director of the advocacy group Texas Cannabis Policy Center, urged supporters in an email to reach out to their representatives and call for changes.

“It is my hope,” she wrote, “that HB 5 will be re-worked to regulate THC and eliminate criminal penalties for possession.”

(Disclosure: Fazio supports Marijuana Moment’s work via a monthly Patreon pledge.)

As the ban legislation has advanced, many policymakers have Notably, Abbott in June signed a bill into law that expanded the state’s list of medical cannabis qualifying conditions, adding chronic pain, traumatic brain injury (TBI), Crohn’s disease and other inflammatory bowel diseases, while also allowing end-of-life patients in palliative or hospice care to use marijuana.

SB 5 and companion HB 5 are among a small handful of bills introduced for the new special session to address consumable hemp products.

Among other proposals are measures to require extensive product warning labels and limit how hemp products are packaged.

Two other newly introduced bills are HB 160 from Rep. Charlene Ward Johnson (D) and SB 39 from Sen. Judith Zaffirini (D).

The former would require a number of warning labels to be carried on hemp products with any more than trace amounts of THC, cautioning that the products can cause “cannabis poisoning that can be life-threatening to children,” harm brain development in youth, increase “risk of mental disorders like psychosis and schizophrenia” and lead to anxiety, depression and substance abuse disorders.

SB 39, meanwhile, would prohibit hemp products from being packaged or marketed “in a manner attractive to children,” limiting packaging shaped like humans, animals, fruit, cartoons or “another shape that is attractive to minors” as well as packaging that looks similar to legal products already marketed to children, for example candy or juice. It would also outlaw misleading product packaging. Violations would be a Class A misdemeanor, carrying up to a year in jail and a $4,000 fine.

Separately, Rep. Nicole Collier (D) introduced a one-page bill, HB 42, designed to protect consumers in the state from criminal charges if what they believed was a legal hemp product turned out to contain excessive amounts of THC, making it illegal marijuana. It would prevent the criminalization of someone found in possession of a product that’s labeled as hemp but is determined to contain “a controlled substance or marihuana.”

In order for the person to obtain the legal protection, the product would need to have been purchased “from a retailer the person reasonably believed was authorized to sell a consumable hemp product.”

Another bill—HB 195, introduced by Rep. Jessica González (D)—would legalize marijuana for people 21 and older, allowing possession of up to 2.5 ounces of cannabis, with no more than 15 grams of that amount being in concentrated form.

Yet another proposal would order state officials to conduct a study on testing for THC intoxication.

As for what Texans themselves want to see from their representatives, proponents of reining in the largely unregulated intoxicating hemp industry in Texas shared new polling data indicating that majorities of respondents from both major political parties support outlawing synthetic cannabinoids, such as delta-8 THC.

The survey also found that respondents would rather obtain therapeutic cannabis products through a state-licensed medical marijuana program than from a “smoke shop selling unregulated and untested hemp.”

Ahead of the governor’s veto last month of SB 3—the earlier hemp product ban—advocates and stakeholders had delivered more than 100,000 petition signatures asking Abbott to reject the measure. Critics argued that the industry—which employs an estimated 53,000 people—would be decimated if the measure became law.