AUSTIN _ Legislation that could save the state’s consumable hemp market from a total ban – while reducing it to edibles and non-synthetic, smokable low-dose flower buds, grown only in Texas – passed unanimously in a Texas House committee late Wednesday.

Counties could opt out and elect to go entirely “dry” with no hemp sales at all through elections similar to those allowed for alcohol sales, and the entire hemp program would be moved from state health officials’ purview and under the direction of the Texas Alcoholic Beverage Commission.

Even with local option, however, the plan is in direct opposition to demands by Lt. Gov. Dan Patrick and a vast majority of the Texas Senate that the state enact a total ban on gummies, vapes, drinks and other retail products made with hemp-derived synthetic tetrahydrocannabinol — or THC, the psychoactive ingredient in marijuana.

The products have proliferated through more than 8,500 license holders throughout the state since they became legal through a loophole in a 2019 farm bill.

But while Patrick visits smoke shops hoping to find underage customers and vowing to accept nothing less than Senate Bill 3’s ban on the retail consumable hemp market in its original form, the bipartisan House State Affairs Committee didn’t hesitate to rewrite the legislation before sending it to the House floor on a 15-0 vote.

The new legislation, sponsored by House State Affairs Chairman Ken King, R-Canadian, comes three weeks after veterans, police, doctors, pediatricians, parents, scientists, and business owners testified past 3 a.m. at a contentious House hearing over the merits and risks of allowing the $8 billion industry to continue.

The House version

The House version of the bill could still wipe out half of the value of products on the market today. But it stops short of killing the industry altogether, allowing hemp specialty stores but banning the products from being sold in gas stations and vape shops. The bill bans all forms of smokable hemp except low-dose hemp flower – not high enough to be psychoactive – that’s grown naturally in Texas. It also bans hemp vapes, including those made with THCA and other derivatives.

The stores may sell tinctures and edibles, including gummies and drinks. The bill bans sales to customers under 21, requires child-resistant packaging, prohibits packaging that markets to kids, and includes other testing and regulatory requirements.

Taxes gathered on the products would be divided like this: Half to the TABC, one-quarter to accredited crime labs and the last quarter to opioid narcotic response services by law enforcement.

The Senate version

The Senate passed SB 3 as a total ban in early March on a 24-7 vote, one day after a video surfaced of Patrick going into a THC shop near a middle school in South Austin — the latest in a growing series of personal investigations the powerful lieutenant governor is doing this session. A shop employee is heard asking for his identification as the store requires customers to be at least 21.

SB 3 by Sen. Charles Perry, R-Lubbock, would criminalize the possession and manufacture of intoxicating legal products currently sold in smoke shops, convenience stores, breweries, coffee shops and online retailers.

Possession of the products would be a Class A misdemeanor, punishable by up to a year in jail and a fine of up to $4,000. Manufacturing them would be a third-degree felony, punishable by 2 to 10 years in prison and a fine of up to $10,000.

Retailers would have until January to comply with the new law, which would not target the sale of the products containing cannabidiol (CBD) or Cannabigerol (CBG), two nonintoxicating hemp derivatives.

It would ban anything other than CBG and CBD. That includes all other consumable hemp products, such as cannabinol (CBN), which is also nonintoxicating and popular for uses such as sleep aids and anxiety.

CBD is federally approved for treating a form of childhood epilepsy, and medical evidence suggests it could treat anxiety disorders, pain, insomnia and possibly inflammation.

Perry has promised to deliver “the toughest THC ban in the nation.”

The fight ahead

If the 15-0 vote of the committee, made up of 9 Republicans and 6 Democrats, is any indicator, the House could stop it in its tracks.

“I appreciate you working on it, I know it’s a long time coming,” Rep. Dade Phelan, R-Beaumont, a member of the committee, told King right before the vote.

Supporters of the ban say that THC should only be legal in Texas for those who need it for medical needs, administer through health professionals, and can qualify through the state’s medical marijuana program, known as the Texas Compassionate Use Program.

Bills that would increase the number of dispensaries in that program – from 3 to 11 – allow for off-site storage of product, allow for smokable marijuana to be administered instead of just gummies and oils, and add more qualifying health conditions are awaiting committee and floor votes.

Prohibition would be a disappointing overreach that defies Texas’ pro-business values, supporters have said. They urge lawmakers to avoid killing an industry that has created about 50,000 jobs, according to market research.

The 2019 loophole

Hemp and marijuana plants are varieties of cannabis. In Texas, products containing THC from marijuana are illegal except for the narrow medical program.

Most THC products derived from hemp plants, however, are legal because of a 2019 state law that allows the farming and commercialization of hemp with trace amounts of THC.

Because the law was written for farmers, not retailers, it did not offer the restrictions present in other states’ consumable hemp programs, including strict third-party testing requirements and age limits on purchases.

The 2019 legislation limited the amount of delta-9 THC in hemp plants and products to no more than 0.3% by weight but did not place limits for any other hemp derivatives.

The law removed hemp from the state’s Controlled Substances Act, effectively legalizing all of its derivatives without potency limits on most of them.

In 2023, some lawmakers attempted to ban intoxicating hemp-based products but were unsuccessful.

Law enforcement has been at odds with retailers over the legality of the products because some tested after being sold contained illegally high levels of THC and products have been found in the possession of those younger than 21.