Written By: Ashley Simpson, HLG Attorney

The Texas Department of State Health Services (“DSHS”) officially adopted rules concerning the manufacture, distribution, and retail sale of consumable hemp products on July 13, which become effective August 2. These rules were drafted to comply with Texas House Bill 1325 (“HB 1325”), which created Texas’ Hemp Program.

Pursuant to Texas’ hemp legislation, the purpose of the regulations is to ensure that consumable hemp products are safe to consume and properly labeled. For those who wish to manufacture, process, and/or distribute consumable hemp products, DSHS requires that one obtain a license, and registration is also required for retailers of consumable hemp products containing cannabinoids.

 Consumable Hemp Products For Smoking

Similar to other states that have implemented bans on smokable hemp products, Texas’ rules expressly prohibit “the manufacture, processing, distribution, or retail sale of consumable hemp products for smoking.” See Rule §300.104. However, unlike some other states that generally prohibit the distribution and sale of raw hemp flower products, regardless of packaging and labeling, comments made by DSHS indicate that Texas’ rules permit such raw flower products so long as the product adheres to applicable state regulations and is marketed for a purpose other than smoking.

Prior to the adoption of the rules, during the comment period of the rulemaking process, DSHS received comments regarding the proposed rules from some 1,726 commenters. Of those commenters, 1690 commenters opposed the prohibition of the retail sale of smokable hemp products contained in §300.104.

Unfortunately, in response to comments received, DSHS expressed disagreement with the reasons suggested for reversing the ban and declared that the ban will remain intact, presumably to assist law enforcement in differentiating between possession of lawful hemp and unlawful marijuana intended to be smoked or otherwise inhaled. DSHS indicated the agency cannot reasonably approve the retail sale of smokable hemp products of which HB 1325 clearly prohibits the manufacture and considers the retail ban proposed in §300.104 a logical extension of the manufacturing ban.

Hemp Flower

Notably, in response to a particular comment regarding hemp flower, DSHS indicated that properly tested and labeled hemp flower, marketed for use other than smoking does not necessarily fall under the retail ban contained in §300.104.

Accordingly, companies who manufacture, distribute, and/or sell raw hemp flower products may potentially sell such products if the labeling and marketing of the product align with Texas’ labeling regulations In other words, DSHS suggests that such raw flower products are not outright prohibited under the retail ban on smokable hemp products if these products are labeled and marketed properly.

Smokable Hemp Ban

In addition to the smokable hemp ban, Texas’ rules also mandate that consumable hemp products adhere to specific labeling requirements (e.g., QR code/URL linking to Certificate of Analysis, etc.) and that all necessary licenses and/or registrations are obtained. Texas’ rules expressly prohibit the sale of consumable hemp products containing CBD at retail in Texas unless the person submits a registration to DSHS for each location owned, operated, or controlled by the person at which those products are sold.

If you have questions about hemp product labeling or permissible product types in Texas, our attorneys are here to assist you. We can also help you in obtaining the required licenses and/or registrations required for the cultivation, processing, manufacturing, distribution and/or retail sale of consumable hemp products.

Please contact our office today at Hoban.Law!