Ambiguities in Law Result in No Legal Action by Texas DPS

On September 7, 2016, the Texas Department of Public Safety visited four People’s Pharmacy locations in the Austin area. The purpose of their visit was to seize cannabidiol (CBD) products for testing. What kind of testing you ask?

They were taking the CBD oil products to test for compliance with Texas’ ‘Low-Thc, High-CBD’ Medical Marijuana laws. Texas allows for up to 0.5% THC in CBD oil products sold to treat intractable epilepsy. This type of testing is commonly known in the industry as a ‘potency test’ or a ‘cannabinoid profile.

During the Department of Public Safety’s visits, no arrests were made and several CBD oil products were confiscated for testing.

In October, Phillip Adkins, general counsel for the Texas Department of Public Safety responded with the testing results on the confiscated CBD oil products:

 

[box] Attached is the lab report regarding the ‘CBD hemp oil’ from People’s Pharmacy.  The report indicates the presence of cannabidiol (CBD). The report does not indicate any detectable tetrahydocannabinol (THC).  Given certain ambiguities regarding the status of CBD under the Texas Controlled Substances Act (CSA), the department, after consulting with prosecutors, does not intend to pursue enforcement action based on the tested substance.  This discretionary enforcement decision does not constitute a general opinion about the legality of any product.[/box]

 

There are a few takeaways here.

  1. “The report does not indicate any detectable THC” – This means that potency test results on the confiscated CBD oil products reported THC, the psychoactive compound, below the 0.5% threshold that the state has put in place. Kudos to People’s Pharmacy for following the law!
  2. “Given certain ambiguities regarding the status of CBD under the Texas Controlled Substances Act, the department, after consulting with prosecutors, does not intend to pursue enforcement action based on the tested substance” – The Department of Public Safety confirms that there was CBD in the products. However, they admit to ‘ambiguities’ in the law and that they do not truly know if that is legal or illegal; and because of that, they are handcuffed and can take no action against.

The second takeaway is important. It reinforces the fact that laws surrounding CBD is ambiguous and lacks straightforward guidance. The lack of clarity is not just at the federal level, as we highlighted in (Is CBD Legal?), but at the state level in states that have passed legislation surrounding CBD oil products.

Sidebar