Hemp became legal with the passage of the federal 2018 Farm Bill. Then, Texas legalized it as well with House Bill 1325 the following year. These laws legalized cannabis with 0.3% delta-9 THC or less. Delta-9, often just referred to as THC, is the chief psychoactive component in cannabis. In other words, it’s what gets users high.
From these laws sprung a market of unregulated consumable hemp products. Since then, Texans have been able to buy products like CBD flower, vapes and oil. Then came consumable hemp products that contained substances like delta-8 THC, which could also get users high — no delta-9 needed.
But again, it’s all unregulated. You may think you’re buying a legal consumable hemp product with 0.3% delta-9 or less. The package may even say so. A QR code might even direct you to a lab report as alleged proof of this. But get that stuff tested in a lab and you may find you’re in possession of an illegal controlled substance, a product with more delta-9 THC than is allowed by Texas and federal law. Some call products that test over the limit "hot hemp."
If you're like most people, you probably never get the chance to test the stuff you buy in a lab. But you can bet the cops who pull you over and suspect your legal hemp is actually illegal marijuana will get it tested if they want to charge you with possession. All you can do from there is hope that the product you bought was labeled correctly and doesn’t contain an illegal amount of delta-9 THC. If it does, you may be out of luck and stuck with a possession charge even though you had every reason to believe the product was legal.
That’s where Collier’s House Bill 382 could offer some help. If her bill passes, it would provide a defense against prosecution for scenarios just like these. The thinking is that the consumers shouldn’t be punished for buying an illegal product they thought was legal.
“Throughout my time in the Texas House of Representatives, consumer protection has been one of my main priorities,” Collier said. “House Bill 382 protects law-abiding consumers from the potential legal consequences of unintentionally purchasing a controlled substance from an otherwise reputable retailer."
She added, "Without this protection, depending on the weight of the product and the county in which they are stopped by law enforcement, that consumer could be prosecuted for felony possession and face significant fines and jail time."
This bill isn’t exactly a bombshell, but it would be a welcomed change, said Zachary Maxwell, president of Texas Hemp Growers. “It doesn't necessarily change the environment, but instead reinforces that possession of legal hemp products is not a criminal offense,” Maxwell said. “Of course, this is a good thing and we support this.”
But Jesse Williams, a local cannabis advocate, said the bill’s protections could go even further than the consumer level. He is also the managing editor and deputy director of the Fort Worth-based online publication Texas Cannabis Collective.
“Purchasers who buy products under the notion that their transactions are totally legal should not face penalties when the seller is committing the fraud." – Jesse Williams, Texas Cannabis Collective
“This bill could provide criminal protections for both end-consumers and possibly shop owners that are sold products fraudulently mislabeled,” Williams said. “Right now if a shop owner had a delta-8 labeled product that was actually delta-9 over 0.3%, even though the lab report used upon purchase says it's legitimately hemp, the shop owner could get raided and held responsible under HB 1325 from back in 2019.”
To Williams, this is wrong.
“Purchasers who buy products under the notion that their transactions are totally legal should not face penalties when the seller is committing the fraud,” he said.
While this may lead to fewer prosecutions, Williams suspects there will be just as many arrests and charges filed against people who are believed to be in possession of marijuana, when they actually had only hemp.
“People would think this bill would mean that police departments will need to understand how a QR code for hemp works, what to look for in said lab report and verify if the lab report is a legitimate report. But it doesn’t,” Williams said. “It's only a defense to prosecution.”
To him, that means officers will still arrest people for what they think is marijuana. They may have a defense under Collier’s bill, but not before potentially spending thousands of dollars to hire an attorney.
If the charges are dismissed, Williams said the arrest would still need to be expunged from the person’s record, which can take time and money to navigate. This is where the bill doesn’t go far enough, he said. “It's a great first step for sure, but I think we could tailor it to eliminate the hurt of being the victim of fraud,” Williams said.
The bill could see some changes when it's taken up in the state's upcoming legislative session, which is set to convene on Jan. 10.