Republican lawmakers, determined to shut down the unregulated market of Delta-8-tetrahydrocannabinol, found an unlikely vehicle in House Bill 2593. Last Friday in the Senate, that bill, originally intended to reduce penalties for possession of cannabis concentrates for vaping and edibles, was amended to redefine “total THC” to include all isomers of marijuana’s essential element Delta-9-THC. The bill was subsequently passed.
Unless the House goes to conference to hash out the differences between the bill they passed in April and the recently amended version, Delta-8 products will become illegal on Sept. 1. As of press time, with six days left in the 87th Texas Legislature‘s regular session, no conference committee has been named.
As the Chronicle reported on April 16, “D-8” is booming business in Austin and statewide. The somewhat psychoactive substance’s popularity has created much-needed business opportunities for the state’s hemp farmers, processors, and retailers. Even the Chronicle has a Delta-8 product: a watermelon-flavored oral tincture with Gelato terpenes released in conjunction with Grassroots Harvest CBD.
Delta-8 already survived a brush with death in early April, when an agricultural hemp program cleanup bill (HB 3948) that lumped together all forms of THC was replaced with a substitute version that specified regulations pertaining to Delta-9. The latest threat, once again championed by cannabis nemesis Sen. Charles Perry, R-Lubbock, elicited dire concern amongst both retailers and suppliers.
Texas Hemp Growers estimates that Texas will lose up to $51 million in brick-and-mortar retail sales in one year if Delta-8 is banned. That association’s President Zachary Maxwell wrote in a statement: “Texas could have regulated Delta-8 responsibly, with strict guidelines on access, purity, and packaging. However, stakeholder feedback was entirely ignored in favor of fear and ignorance.”
The Delta-8 amendment notwithstanding, HB 2593 could be Texas’ first successful piece of marijuana penalty reduction legislation since 1973. Authored by Rep. Joe Moody, D-El Paso, and sponsored by Sen. Nathan Johnson, D-Dallas, the bill would reduce the penalty for possession of cannabis concentrates from a state jail felony to a class B misdemeanor.
Heather Fazio, director of Texans for Responsible Marijuana Policy, believes Gov. Greg Abbott will sign the bill whether or not it includes the Delta-8 amendment, citing broad public support, including that of the Texas District and County Attorneys Association. “People who’ve been picked up with a vape pen or a pack of gummies are sitting there with very hardened criminals in the same court system and they know that it’s not reasonable and it’s not fair.”
Going into session, Fazio was unsure how much traction marijuana reform efforts would get, given the scale of the crises facing the state, but she reports that citizen engagement has been high. In particular, a great deal of recent public pressure led Lt. Gov. Dan Patrick to finally advance the medical cannabis expansion bill that had been awaiting action in the Senate. HB 1535 passed unanimously, but only after being drastically watered down to only add cancer and PTSD patients (scrapping chronic pain); removing a provision that would have allowed the Texas Department of State Health Services to add other qualifying conditions; and raising the allowable THC concentration to a mere 1% rather than the 5% in the initial bill.
Fazio says that in six years of Texas’ low-THC Compassionate Use medical program, fewer than 5,000 patients have participated, while those with PTSD and chronic pain have been turned away. The approved expansion is microscopic compared to the medical programs of 37 other states. “While this is a step forward, it’s disappointing that the Texas Legislature continues to inch ahead, while other states (most recently, Alabama!) take meaningful action to allow safe and legal access to medical cannabis,” Fazio wrote in a statement Wednesday morning.
A version of this article appeared in print on May 28, 2021 with the headline: Cannabills Near Finish Line, Diluted and Distorted