Delta-8 hemp and Texas medical marijuana industries to face off in the upcoming legislative session

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Jack Stinnett got life-changing news in 2020 when he learned the lump that appeared on the side of his neck was tongue and mouth cancer. He and his wife Karen quickly enrolled him at MD Anderson Cancer Center in Houston, where he underwent five and a half rounds of chemotherapy and 33 treatments of radiation.

During this time, Stinnett, a Marble Falls resident, went from a reasonably healthy 60-year-old who rode his bicycle more than 60 miles daily to losing more than 100 pounds after losing his appetite and sense of taste.

Then, Stinnett qualified for a medical marijuana prescription for the nerve pain he received from the cancer treatments and found the relief he needed.

“It helped with my appetite and sleep. This Compassionate Care Act, in my opinion, helps like no other,” he said. “We just need politicians to get out of the way.”

Stories like this point to the successes of Texas’ Compassionate Use Program, but it is facing its worst existential crisis since its inception in 2015. Strict rules on who is eligible, what products can be sold, and where they can be stored have limited the program's impact, while unregulated hemp products like delta-8 and the more potent delta-9 continue to rise in demand due to ease of access.

A potential showdown is brewing between the medical cannabis market and the hemp industry in Texas as both are looking to lawmakers to determine the future.

States like Colorado and California, where both medical and recreational marijuana are legal, are putting tighter restrictions on hemp products as a way to rein in access and force more health and safety accountability on the industry.

After his 2019 agricultural hemp legislation helped open up Texas's hemp industry, state Sen. Charles Perry is now attempting to close it again, as legal weed-style products were never his intention. He suggested an outright ban on the consumable hemp market last week during a State Affairs Committee hearing.

“'If you can't regulate it, control it, and enforce it, you just don't allow it to happen," Perry said.

Perry and other lawmakers have been particularly interested in regulating consumable THC products that can come in drink form. This makes it much more difficult for parents, teachers, law enforcement, and others to tell the difference between a regular drink and one that has been infused with THC.

Lt. Gov. Dan Patrick gave senators a list of legislative directives for the next session, and a prime target is a ban on delta-8 products. He suggested to lawmakers that the state examine the sales of intoxicating hemp products in Texas, make recommendations to regulate the sale of these products, and propose legislation to stop retailers who market these products to children.

The Texas Department of State Health Services also filed a case before the state’s Supreme Court in August to classify delta-8 as an illegal substance. While the case is pending, delta-8 is still legal to buy and sell.

The Texas hemp industry has argued in court that delta-8’s high is minimal, and if delta-8 and delta-9 products are banned, it would do irreparable harm to the industry and the state’s economy.

“Any bans or excessive legislation of hemp-derived cannabinoids, as suggested by Lt. Gov. Dan Patrick and others, will negatively impact an industry that has an $8 billion economic impact, pays $1.6 billion in annual wages, and supports more than 50,000 workers,” said Lukas Gilkey, CEO and co-founder of Hometown Hero, the company who filed a suit against the state and is defending the hemp industry in the state’s Supreme Court.

The hemp conundrum 

David Bass, a retired U.S. Army veteran who was diagnosed with PTSD, has been a proud user of the Compassionate Use Program and has heralded its benefits for veterans. Still, he said his organization, the Texas Veterans for Medical Marijuana, is staying neutral regarding a delta-8 ban due to how many veterans use it.

“Of course, your typical consumer, in their mind, perceives it as the same product, and if it is cheaper and easier to access and equally as effective, then I can’t fault anybody,” Bass said.

While science doesn’t differentiate between hemp and marijuana, the law does. The term “hemp” is used to mean cannabis that contains at most 0.3% THC content by dry weight. Under the law, marijuana, which is illegal, refers to cannabis that has more than 0.3% THC by dry weight.

It is legal to buy and use most smokable hemp products, such as flower or vape cartridges with CBD, THCA, and delta-8. The latter looks, tastes, and sometimes intoxicates similar to their more potent sibling marijuana — with no age limits, loose and inconsistent testing requirements, and no limit on the number of licenses allowed in the state.

Retail cannabis dispensaries sprang up by the thousands after the 2019 agricultural hemp legislation—a bipartisan, farmer-friendly bill—opened up the state’s hemp industry and touched off a massive new consumable hemp market in Texas as well.

Texas is now home to more than 7,000 registered consumable hemp retail spots — in gas stations, storefronts, bars, coffee shops, strip malls, and mobile trailers — selling gummies, candies, drinks, and smokeables with low-dose tetrahydrocannabinol, or THC, the psychoactive ingredient in marijuana.

Meanwhile, three medical dispensaries serve the entire state.

Bass said thousands of veterans in Texas now use hemp products and have chosen them over the Compassionate Use Program because they are easier to access and less expensive. He said some organizations like Hometown Hero have vending machines with delta-8 products in Veterans of Foreign Wars facilities because so many people in this demographic are using these items to treat their mental health.

“The medical marijuana program is highly regulated, and the medicine is more expensive than the hemp product, and you have to have a prescription and renew it every six months, and you have to drive all the way to the dispensary, so it’s a big challenge,” he said.

The federal Food and Drug Administration has warned about the negative health impacts of unregulated hemp products, such as hallucinations, vomiting, anxiety, and loss of consciousness, and have mentioned this is not a safe alternative to marijuana.

In 2021, the Texas Department of State Health Services attempted to ban delta-8 by classifying it as an illegal substance.

However, a hemp grower filed an injunction against the state, and the resulting lawsuit has been proceeding through the courts.

Bass said despite it never being the intent of Texas for legal weed-like substances to be sold to the public, now there are thousands of hemp products that veterans are using to treat their PTSD, chronic pain, and more, and it might be too far to go back now.

“They tell me these products are perfectly safe, and they never had any bad experiences with this, and they are effective,” Bass said of users’ experiences.

A ban would also affect farmers who grow hemp, the people who turn it into delta-8, and the shops that sell it. These products have an annual economic impact of $8 billion in Texas, according to research from the Texas Hemp Business Council.

An over-regulated program 

Shawn Collins’ entire world changed on Sept. 11, 2011 when he witnessed the twin towers collapse. He was working near the Empire State Building, about three miles from ground zero, when his job sent him home for the day. The scars of the tragedy lingered for decades inside Collins' mind.

Collins, who now lives in Austin, spent many years battling undiagnosed PTSD and sleepless nights while trying to raise a family. He self-soothed with alcohol and coffee until he obtained a medical marijuana prescription in recent years.

“It's a miracle drug; it’s literally been life-changing,” Collins said, adding that he has researched delta-8, but hasn’t tried it. “I encourage those who might have a bias towards [medical marijuana] to speak to a therapist and let them tell you the benefits.”

Jervonne Singletary, community relations manager for Austin medical marijuana company Good Blend, said Texas is at a critical juncture for the Compassionate Use Program as those in the industry aren’t seeing the amount of patients that were expected.

“There are a lot of regulatory hurdles in the industry that make it a bit easier for folks to go to the delta-8 and delta-9 market,” Singletary said. “Currently, we kind of have our hands tied behind our backs when it comes to what we can offer, and it has created a bit of unfair competition between us and delta-8 and delta-9 producers.”

Nico Richardson, CEO of Texas Original, a medical marijuana distributor in Cedar Park, said many patients are also looking for smokeable products, and he can only provide edible or oil-based alternatives. He said this has contributed to his patient numbers dropping considerably.

“It has turned into an absolute train wreck for the state, he said.

In Texas, licensed medical cannabis providers must house all operations, including cannabis cultivation, processing and extracting, manufacturing, testing, and dispensing, under one roof.

State regulations also prohibit inventory storage of medical cannabis products in multiple locations, so products must be distributed from the central dispensary. Any prescriptions scheduled for pickup outside the central dispensary must be driven daily to and from the pickup location—sometimes thousands of miles roundtrip.

Richardson said this has made their products more expensive, hampering the small medical cannabis market in Texas. Industry leaders are concerned if something isn’t done to balance the scales, the medical industry will crumble.

Texas is one of about a dozen states that has not legalized marijuana in any form for broad use. The state’s floundering medical marijuana program, the Compassionate Use Program run by the Texas Department of Public Safety, has about 12,000 active participants out of nearly 45,000 patients who are registered, as well as a short list of conditions that would qualify a resident.

Texans with a variety of conditions — such as epilepsy, autism, cancer and post-traumatic stress disorder — can access cannabis oil from marijuana plants with less than 1% THC. Medical cannabis can treat the symptoms of some of these diseases or reduce the side effects of other treatments.

“Right now, we estimate …there are over a million and a half who qualify, according to their physicians,” Singletary said.

The medical marijuana industry wants to reduce the cost of operating a medical dispensary while expanding the number of conditions to qualify for compassionate use, such as anxiety, chronic pain, and other intense physical and mental conditions.

Singletary said one of the best solutions is expanding Texas’ medical cannabis program, which would not only provide safer, regulated alternatives but also curb the dominance of questionable hemp products flooding the market.

“We want to talk to and work with the Legislature, and we’re really happy to have lawmakers who want to champion adding additional conditions to the program,” Singletary said.

The showdown

Medical marijuana industry leaders are now leading the charge to ban or regulate these delta-8 and delta-9 products, and lawmakers are listening.

While lawmakers might think this is an easy fix as there are only two options available for veterans — medical marijuana or hemp — there is a more ominous third option that can easily replace both of them again, and that is the illegal drug market, Bass said

“The illicit drug market is large and has been used for years, so we have to be careful with our decisions,” Bass said.

While potential new laws threaten the delta-8 industry, business owners have told the Texas Tribune that they would welcome some common-sense regulations.

“We're now seeing the hemp conversation not just in Texas, but nationally, show the pathway for how we can access this plant and really, ultimately help consumers who are seeking relief with cannabis products,” Shayda Torabi, president of the Texas Hemp Coalition, said earlier this year. “We’re watching and waiting to see what happens next.”

However, what is viewed as common-sense regulations differs from person to person.

“It’s going to be a big issue this upcoming legislative session. It won’t get as much media attention as, say, school vouchers, but legislators will discuss it, and we hope some compromise can be made to preserve the Compassionate Use Program and at the same time don’t cut off hemp,” Bass said.