In what may be the largest single expansion of criminal law into people’s private lives in our state’s history, Texas is about to embark on a project to eradicate the use of THC products, even those containing trace levels of cannabinoids other than cannabidiol or cannabigerol.
More details about SB 3 are given below, but suffice it to say that the legislation’s sweep recalls the era of Prohibition. The bill criminalizes any and all aspects of manufacturing, processing, distribution, delivering, selling, buying, possessing, and using a low-THC consumable hemp product. Nobody seems to be quite sure how many people use these products. SB 3’s fiscal note projects a $27 million loss to state and local governments over the next biennium. But, according to reporting by the Texas Tribune, however, the hemp industry suggests that the bill will result in the loss of 50,000 jobs and deal a crippling blow to an $8 billion industry. If those numbers are anywhere in the ballpark, they indicate that a lot of consumers are about to lose access to these products (estimates of marijuana use run around 15%, so do the math).
Given the likely number of low-THC users, how will SB 3 be enforced? It seems a highly dubious proposition that people who enjoy these products recreationally or use them to treat anxiety, sleeplessness, or any number of other conditions will simply quit cold turkey. If the decades-long “war on drugs” is any indication (not to mention our failed national experiment in banning alcohol), people determined to get illegal products will get them. The question then becomes the nature of the market, which, as of the first of next year, will transform overnight from a legal, regulated one to an illegal one.
It’s pretty clear that much of the impetus for SB 3 is the level of use among minors. But can it be stopped? According to the 2023 National Survey on Drug Use and Health, 12.6 million people ages 12 to 20 reported that they had at least one drink in their lives, a whopping 33.1% of this age group. For those who reported drinking in the past year, the numbers drop somewhat to 27.9% of the age group. Clearly, keeping alcohol out of the hands of minors isn’t working very well. SB 3 appears to operate on the theory that if we can keep low-THC products out of the hands of adults, we stand a better chance of keeping them out of children’s hands. That may well be the case, but it’s probably a mistake to underestimate just how easy it is to access illegal drugs in the teenage population.
In any event, we can be fairly certain that the market for these products won’t go away, no matter how vigorously we try to enforce the law. One way or another, enforcement will present enormous problems for state and local police, who already grapple with too much to do and too little to do it with. Are we going to fill local jails with moms and dads who enjoy a gummi or two on Friday night? Are we going to conduct raids on fraternity and sorority house parties on college campuses? Does it make any sense to allow alcohol sales at major sporting events but arrest people for having some CBD to take the edge off? For that matter, does it make any sense to allow people to drink alcohol and smoke or consume tobacco products but not low-THC consumable hemp products?
Clearly, as with the problem of teenage drinking, criminalizing marijuana has had very little effect on marijuana use at all levels of the population. This failure is reflected in the growing number of states that have legalized recreational marijuana in some for or fashion. Twenty-five states have full legalization, and all but four states (Texas is about to become the fifth) have full decriminalization. We are swimming against the tide of public opinion, that much is certain. We also have to ask that if THC-containing products are legally available in states all around Texas, what chance do we have of isolating ourselves from products that are perfectly lawful in other states? Are we going to open everyone’s mail? Search every vehicle crossing into Texas from other states? Forbid Texans from leaving the state just in case? How much infringement on people’s personal and civil liberties are Texans willing to take?
Probably not too much. Public opinion surveys, most recently one published by the University of Houston in February, indicate that 79% of Texans support legalization with a doctor’s prescription, 69% support decriminalization of possession for personal use for adults, and 62% support legalization for recreational purposes in general. It should be noted, however, that the same survey found that a majority of Texans still support regulating or banning the sale of unregulated THC products. SB 3 doesn’t attempt to regulate them, only to ban them.
If nothing else, SB 3 is an experiment in social engineering. Undoubtedly, proponents of SB 3 sincerely hope that simply outlawing these products will achieve a reorientation of the people’s use of substances to relax, have fun, or treat physical and emotional conditions. But, as we have suggested above, it may simply reorient the way people acquire these substances, and, perhaps, not in the right direction. For all of the good things SB 3 might do in reducing substance abuse, it might undo them by creating a massive, unregulated criminal enterprise aimed at giving people what they want and what they used to be able to get legally. Will this experiment ultimately go the way of Prohibition? We’ll see how things play out politically, but it’s hard to see that SB 3 will enjoy the kind of broad public support necessary to compel people to change behavior that they don’t think does anybody any harm.
The major provisions of SB 3 include:
- Adds § 443.1035, Health & Safety Code, to require a manufacturer of a consumable hemp product to obtain a license, and appropriate permits.
- Requires each applicant shall pay an initial licensing fee in the amount of $10,000 per location where processing or manufacturing of hemp will occur, as well as a renewal fee of an additional $10,000.
- Allows renewal if the license holder: 1) is not ineligible to hold the license under Section 443.102; 2) has not violated this chapter or a rule adopted under this chapter; 3) submits to the department any license renewal fee; and 4) does not owe any outstanding fees to the department.
- Prohibits the manufacture of a consumable hemp product that contains any amount of a cannabinoid other than cannabidiol or cannabigerol.
- Requires testing of consumable hemp products to determine the concentration and identity of the cannabinoids in the plant and the presence or quantity of heavy metals or other substances prescribed by the department.
- Requires testing to occur in a laboratory located in the state of Texas and registered with the USDEA and through an accredited institution in accordance with the ISO/IEC.
- Requires testing to use post-decarboxylation, high-performance liquid chromotography, or a similar method.
- Requires the person who tests the product to report the test results to the department.
- Prohibits a product that contains any amount of a cannabinoid other than cannbidiol or cannabigerol to be sold or introduced into commerce in this state.
- Requires testing results to be be made available to the seller by the license holder.
- Requires the owner of a location which sells consumable hemp products to register with the department by paying a fee of $20,000 per location.
- Requires a manufacturer to register a consumable hemp product with the department before offering the product for sale by paying a fee of $500 per product.
- Prohibits the department from licensing a product containing any artificial or synthetic cannabinoids or alcohol, tobacco, nicotine, kratom, kava, mushrooms, or a derivative of any of those.
- Creates a Class B misdemeanor offense for distribution, delivery, sale, purchase, possession, or use of an unregistered product.
- Creates a DTPA violation for sale or distribution of a product if the seller claims it is compliant with production and packaging requirements.
- Establishes packaging and label requirements.
- Creates a Class A misdemeanor for marketing or packaging in a manner attractive to minors (defined as under 21).
- Creates a Class A misdemeanor for sale of a product that contains or is marketed to contain hemp-derived cannbanoids in a package likely to mislead a person to believe the package does not contain a cannabinoid or the product is intended for medical use.
- Bars retail sales of products manufactured outside Texas unless they were manufactured, tested, processed, and packaged in compliance with Texas law.
- Creates a third degree felony for knowingly manufacturing, delivering, or possessing with intent to deliver illegal products.
- Creates a Class C misdemeanor for knowing or intentional possession of an illegal product, permits DPS to suspend an offender’s driver’s license.
- Creates a Class A midemeanor for selling or marketing an illegal product to a minor and makes an employee of a store owner criminally responsible.
- Creates a Class B misdemeanor for manufacturing, distributing, selling, or offering to sale a consumable hemp product for smoking (applies to any product, not just an illegal one).
- Creates a Class B misdemeanor for selling, offering to sell, or delivering an illegal product within 1,000 feet of a school.
- Creates a Class A misdemeanor for providing an illegal product by mail, delivery, or mail service.
- Creates a third degree felony for intentionally forging, falsifying, or altering a lab test.
- Creates a third degree felony for processing or manufacturing a product without a license or selling an unregistered product.
- Establishes a complaint and investigation process by the department, including license revocation and a $10,000 per violation administrative penalty.
Sent to Governor on 5/27. Act takes effect September 1, 2025.
