Texas health agency adopts emergency rule banning consumable hemp sales to anyone under 21

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Texas' state health agency approved an emergency rule on Friday to ban hemp license holders from selling consumable hemp products to anyone under 21, the first step toward fulfilling an executive order by Gov. Greg Abbott that called for stricter regulation of the products.

The emergency rule, approved by Health and Human Services Commissioner Cecile Erwin Young, requires sellers of consumable hemp to verify with a valid ID that a customer is at least 21 years old; violations may lead to the revocation of a license or registration. The rules are effective immediately.

The state health agency approved the rule less than two weeks after the Texas Alcoholic Beverage Commission approved an emergency rule to ban liquor license holders from selling consumable hemp products to anyone under 21. This includes THC and CBD products.

The two agencies are working together because neither has jurisdiction over the entire landscape of retailers that sell consumable hemp products. For example, TABC rules wouldn’t apply to 8,000 licensed hemp retailers who fall under the Department of State Health Services, including smoke shops, gas stations, and online retailers that do not sell liquor and presumably do not hold a liquor license. The same can be said for 60,000 TABC license holders, such as restaurants and liquor stores.

The emergency rules will be in effect for up to 180 days, with the option to extend them 60 more days. The formal rulemaking process, which includes further public meetings and testimony, is expected to begin at the TABC's next meeting on Nov. 18.

The TABC said it hopes to adopt formal rules in January. The formal rules are expected to be “substantively similar” to the emergency rules, agency staff told the commissioners. Conversations between TABC and DSHS to determine regulatory duties for each agency are ongoing.

TABC, which primarily regulates the sale of alcohol in the state, pointed to potential harms to minors as the justification for the emergency rule.

“TABC has a statutory responsibility to ensure its license holders do not impede the general welfare, health, and safety of Texas communities,” TABC Executive Director Thomas Graham wrote in a statement Tuesday. “The commission’s actions today are a reasonable measure within its authority to help protect children across this state.”

The executive order came after the Texas Legislature spent the better part of the year debating a total ban or stricter regulations for the industry. A total ban approved by both the House of Representatives and the Senate was vetoed in June by Abbott. The governor then put THC regulation on the agenda for two consecutive special sessions over the summer, but lawmakers were unable to find a compromise before the end of the second session early this month.

Rather than call a third special session, Abbott issued his executive order, bypassing the Legislature. The decision has put Abbott at odds with Lt. Gov. Dan Patrick, who said the Senate will not accept anything short of a total ban.

After months of uncertainty over the Legislature’s consideration of a total ban, THC industry representatives largely celebrated Abbott’s order at the time, saying it would allow THC to further establish itself as a legitimate industry in the state. Owners and managers of smoke shops interviewed by the Texas Tribune said an age limit of 21 to purchase THC products is already being enforced by most distributors, so the regulations are not expected to be overly arduous.

Which age limit to enshrine

Lukas Gilkey, the CEO of Austin-based manufacturer of hemp-derived products Hometown Hero, called the commission’s approval “historic” and long overdue.

“For them to do this today is actually a really big deal for the industry and legitimizes the industry, so it’s an honor to be here and have them do that,” Gilkey said.

Mark Bordas, executive director of trade association the Texas Hemp Business Council, called the TABC rule a great start and said he expects TABC and DSHS to be able to work together to create a smooth regulatory process throughout the formal rulemaking period.

Betsy Jones, director of policy and strategy for Texans for Safe and Drug-Free Youth, noted her advocacy group had little time to review the rule proposal before the meeting and urged the agency to take careful consideration when reviewing how best to regulate hemp products in the state going forward.

“We know there’s still problems with alcohol, so we don’t want to see the same problems starting to happen because we opened up access to something without thinking about these issues.

Several advocates against the use of THC products testified against the rules as they were drafted entirely.

Aubree Adams, director of advocacy for Citizens for a Safe and Healthy Texas, advocated for the agency to increase the age restriction to prohibit anyone under the age of 25 from buying THC products, arguing the brain needs to be completely developed to reduce risk to people using cannabis products. Adams also noted that a large percentage of hemp products are purchased online, where TABC’s rule does not apply.

Christine Scruggs, an outspoken advocate against any recreational use of cannabis products, said her son struggled with THC dependency and suffered mental health effects from it before undergoing treatment.

“I no longer believe that any safe age is OK for hemp or cannabis products. Any person could be affected,” Scruggs testified.

Other regulations could require a state law

Abbott’s order called only for a ban of sales to minors, leaving the specific age that is set up to the agencies. However, the governor repeatedly called on lawmakers to prohibit THC products to those under 21 during the legislative sessions.

DSHS was tasked with reviewing current rules and possibly adding stricter labeling and testing requirements, improving recordkeeping to facilitate oversight and increasing licensing fees to support enforcement. The order also calls for DSHS and TABC to work with the Department of Public Safety to increase enforcement on existing rules.

Along with its rulemaking process, TABC, DSHS, the Texas A&M AgriLife Extension Service and other relevant agencies were tasked by Abbott with further studying how to create a comprehensive regulatory framework for the hemp industry. Abbott pointed to House Bill 309 from the second special session as the model for such a framework, which would need to be approved by the Legislature, Porter said.

Conversations are just beginning between various agencies to determine how that process will play out, Porter said.

Authored by Rep. Briscoe Cain, R-Deer Park, the 149-page bill would have created a Texas Hemp Council to study and develop rules for THC products and establish hemp testing and licensing requirements. That would have included restrictions like banning the sale of hemp products within 1,000 feet of a church or school and on Sundays, similar to restrictions on liquor. It also outlawed manufacturers from selling smokeable flower hemp, something Abbott asked the Legislature to do in his call for the second special session that ended last week. Texas banned the sale of THC vape pens this month.

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