Recreational marijuana is illegal in Texas, so why are THC products on store shelves?

TEXAS - Since 1931, it has been illegal to use or possess marijuana under Texas law, but in 2018, hemp was made legal federally. Texas passed House Bill 1325 in 2019, which allowed for the commercialization of hemp at the state level. 

The law, which was meant to promote agriculture, also made it possible for Texas businesses to sell low-level THC products.

Why can you still buy products containing THC in Texas?

The difference in the legal and illegal products lies in the plants from which they come. Hemp and marijuana plants are both cannabis plants. Marijuana plants have a THC concentration of more than 0.3 percent. Hemp has low THC, or less than a 0.3 percent concentration.

Several cannabis-based products containing delta-8, delta-9 or the non-intoxicating cannabidiol known as CBD are currently available at stores in Texas, including hemp-based vapes, oils, creams, drinks, gummies and more. They are required by law to contain no more than 0.3 percent THC. 

In May 2021, a federal court ruled that delta-8 products can be legally defined as hemp. The ruling made delta-8 federally legal if the THC concentration is under 0.3 percent. 

Critics, like Texas Lieutenant Governor Dan Patrick, say many items sold in Texas contain more than the 0.3 percent limit because of a lack of testing requirements and regulations.

Marijuana, hemp, CBD, and Delta-8 Differences

• Cannabis plants are the source of both marijuana and hemp. The difference amounts to how much of the psychoactive compound THC, or tetrahydrocannabinol, they contain.
• Marijuana is classified as a cannabis plant or its derivatives that have a THC concentration of more than 0.3 percent. 
• Hemp is classified as a cannabis plant or its derivatives with a THC concentration of less than 0.3 percent.
• Cannabidiol, or CBD, is a non-psychoactive compound of cannabis. It does not contain THC.
• Delta-8-Tetrahydrocannabinol, or delta-8, is a psychoactive substance that is naturally produced in small amounts by cannabis plants. When concentrated in a lab, delta-8 can produce a similar "high" to marijuana.
• Delta-9-Tetrahydrocannabinol, or delta-9, is the primary psychoactive ingredient in a cannabis plant. Delta-9 is illegal in Texas unless it's derived from hemp and contains less than 0.3% THC by dry weight.

Medical Cannabis in Texas

Medical cannabis is legal in Texas, though it is limited. The Texas Compassionate Use Program allows certain physicians to prescribe low-THC cannabis to Texans with an approved list of conditions. Some of the conditions include epilepsy, MS, autism, cancer and post-traumatic stress disorder.

Texas Lt. Gov. Dan Patrick calls for ban on THC products

Lieutenant Governor Dan Patrick says he will support a bill to ban all consumable forms of THC from being sold in Texas. This would include outlawing marijuana extracts Delta-8 and Delta-9. Senate Bill 3 has not yet been filed, according to the Texas Legislature's website.

PREVIOUS COVERAGE: Texas Lt. Gov. Dan Patrick launches legislative initiative to ban all THC from being sold in Texas

"Dangerously, retailers exploited the agriculture law to sell life-threatening, unregulated forms of THC to the public and made them easily accessible," Patrick said in a statement announcing the measure late Wednesday. "Since 2023, thousands of stores selling hazardous THC products have popped up in communities across the state, and many sell products, including beverages, that have three to four times the THC content which might be found in marijuana purchased from a drug dealer. "

The Texas Legislative session begins on January 14.