Before Texas Republicans triggered a nationwide redistricting fight, state lawmakers were already battling over a contentious question: How should Texas manage its large and growing hemp-derived THC industry?
The fight began in early June after Gov. Greg Abbott (R) vetoed a statewide ban of THC products, one of the top legislative priorities of Lt. Gov. Dan Patrick (R). Patrick, a staunch conservative who has long favored strict drug laws, saw the bill pass the state House and Senate with the support of GOP lawmakers, law enforcement, parents’ groups, and even a handful of Democrats.
But Abbott, with the support of the hemp industry, veterans groups, and the general public, preferred a regulatory approach. He vetoed that measure and called a special session to reconsider the hemp issue, along with other legislation he rejected. But the redistricting fight with Democratic state lawmakers derailed that special session. With a second special session now in progress, the state Senate has passed another ban, leaving the future of new hemp-derived THC regulations deeply uncertain, with profound consequences for consumer safety.
Both hemp and marijuana refer to the same plant, Cannabis sativa, but hemp is used to describe cannabis that contains 0.3 percent or less of delta-9-tetrahydrocannabinol (Delta-9 THC), the psychoactive ingredient that produces marijuana’s high. Under federal law, cannabis with more than 0.3 percent Delta-9 THC by dry weight is considered marijuana, an illegal Schedule I drug under the federal Controlled Substances Act (CSA).
As part of the 2018 farm bill, Congress explicitly removed hemp and hemp-derived products from the CSA, which eliminated the federal barriers on a crop used to produce rope, clothing, and paper while keeping the prohibitions on marijuana in place. But legalizing hemp also resulted in the production, sale, and possession of products with a minuscule cannabis content—with less than 0.3 percent Delta-9 THC—which created a new market for harmful substances.
In the years since that development, an explosion of intoxicating hemp products has spread across Texas as well as the rest of the country. While Congress designed the 2018 farm bill to legalize hemp, not marijuana, some chemists soon figured out that they could use chemical derivatives of hemp and convert them into the intoxicating forms of THC that were chemically distinct from Delta-9, such as Delta-8 THC. By the end of 2019, smoke shops were filled with THC products that could be legally sold and consumed because they were hemp-derived.
Legalizing hemp has resulted in the production, sale, and possession of products with low THC levels—but also created a new market for harmful substances.
Texas’s current state laws largely mirror the 2018 farm bill while including a handful of weak additional regulations. In Texas, “THC products have to have less than 0.3 percent Delta-9 THC by weight,” Katharine Neill Harris, a drug policy fellow and researcher at Rice University’s Baker Institute for Public Policy, told the Prospect. But because “there are no restrictions on other forms of THC,” such as Delta-8, those hemp-derived products remain legal.
A Rice University/Baker Institute study found that the industry is rapidly growing, with sales of hemp-derived THC products increasing 1,283 percent from 2020 to 2023. According to an industry-commissioned report published this spring, the majority of the businesses in the $5.5 billion Texas hemp market are either profitable or breaking even.
But the boom has been accompanied by a number of consumer safety concerns that have persuaded state officials that further curbs are necessary. So far, most of that attention has been centered on the safety of minors. Harris emphasized that under current law, there are no age restrictions on the sale of hemp-derived THC products, meaning that “16-year-olds can walk in [to a gas station] and buy some of these products.”
This lack of regulation exists in the context of a dramatic rise in THC poisonings involving teenagers and young children. According to data from the Texas Poison Center Network, THC poisonings skyrocketed from 2019 to 2023, with more than half of poisonings involving individuals under 20 and one-third involving children under six.
The hemp industry, in particular, has zeroed in on children’s safety as the primary reason for regulation. Mark Bordas, the executive director of the Texas Hemp Business Council, told the Prospect that the industry has endorsed age restrictions, child-resistant packaging, and setback laws from schools and churches. “It’s all about protecting the kids,” Bordas says. “They shouldn’t be getting this product.”
But there are also consumer safety concerns related to the adult use of THC products. Since hemp-derived THC products hit retailers in 2019, many manufacturers started making these products through synthetic, rather than agricultural, processes. “It is a fraction of the cost to synthesize THC than it is to grow it,” says Christopher Hudalla, a nationally recognized chemist and the chief scientific officer at ProVerde Labs, which tests marijuana and hemp products.
These synthetic THC products can be dangerously potent because some manufacturers are taking advantage of the murky legal environment created by the farm bill to sell illegal THC products. Hudalla says that some fully synthetic THC products are “sold as a hemp derivative” despite the fact that they “cannot be made from hemp.” “They’re synthetic designer drugs,” Hudalla says.
The problem, however, is not limited to THC designer drugs. Hudalla also told the Prospect that when manufacturers convert the derivatives of hemp into THC, they typically create dozens of synthetic by-products. While manufacturers are supposed to disclose the existence of these by-products to consumers, they typically fail to do so. “I would say that we’ve tested well over 5,000 samples of [hemp-derived THC] products,” Hudalla said. “And to date, we have not seen one without contamination.”
With THC poisonings rising and the hemp market facing deeper scrutiny, Texas lawmakers face increased pressure to craft a regulatory bill that prioritizes consumer safety. But with many lawmakers favoring a ban on hemp-derived THC products, the possibility of new prohibitions may present insurmountable challenges. As Harris told the Prospect, the “best actors,” will leave the industry. “They’re going to go away because they do follow the law—and all you’re going to be left with is the junk.”