EDINBURG — In an effort to address what some are calling a legal gray area surrounding cannabidiol, the city attorney here has asked the state’s chief law enforcement officer to weigh in on the matter.
City Attorney Omar Ochoa sent a letter to Texas Attorney General Ken Paxton on Thursday requesting a legal opinion on the legality of the product commonly known as CBD.
“For the city of Edinburg, my concern is how do we instruct our officers when they come across this,” Ochoa said. “The last thing I want is for citizens to be treated unfairly.”
Cannabidiol comes from the hemp plant, and while related to the marijuana plant, it contains no or low levels of tetrahydrocannabinol, or THC, the psychoactive ingredient that produces a high.
Whether CBD oil and products are legal to sell, purchase and use in Texas is up for debate depending on where in the state you live, Ochoa said, because district attorneys are in disagreement as to how to prosecute cases involving CBD, if at all.
In Hidalgo County, “the position of the district attorney’s office is that it seems that any percentage of THC in CBD under the state law is illegal regardless of its purity,” District Attorney Ricardo Rodriguez said, noting the only exceptions are for those with a prescription.
That state law is the 2015 Texas Compassionate Use Act which legalized CBD with up to .5 percent THC for those with intractable epilepsy who have a prescription for it. There are no physicians registered to prescribe it in the Rio Grande Valley, according to the Compassionate Use Registry of Texas, which is run by the Texas Department of Public Safety.
Late last year, however, the federal 2018 Farm Bill legalized commercial hemp production and the sale of CBD products with .3 percent or less THC.
“Thus, the widespread belief as a result of these laws is that CBD oil extracted from hemp that contains less than .3 percent THC is legal and may be sold, purchased, possessed and used,” the city attorney’s letter to the attorney general read.
Yet because of the state law in place, there remains confusion in Texas.
The district attorney in Tarrant County has taken the position that CBD products are illegal under state law while the DA in neighboring Dallas County told the Fort Worth-Star Telegram he had no plans to pursue CBD cases.
Locally, Cameron County DA Luis Saenz declined to comment for this story via his spokeswoman, who said, “He feels that his opinion carries weight and can be used as a defense, so he does not feel comfortable giving a hypothetical opinion.” Omar Escobar, DA for the 229th Judicial District, which covers Starr, Duval and Jim Hogg counties, did not return a request for comment.
“If it has THC, at this point, we’re saying it’s illegal,” Rodriguez said of CBD products in Hidalgo County, noting his office is taking a look at a few cases involving products with THC. His focus, he said, is making sure his office is in compliance with state law.
The AG’s opinion is a written interpretation of an existing law and does not create new provisions in a law, according to Paxton’s office.
Paxton has not issued an attorney general opinion on CBD products, and his press office staff did not respond to a request as to whether any such opinions are pending.
Ochoa, Edinburg’s city attorney, said to his knowledge no one else has requested an opinion on this topic.
Although city attorneys are not among the authorized requestors listed on the AG’s website, Ochoa said he believes he can still request an opinion because city attorneys do that for other matters, such as public information requests. If his request for an opinion is denied because he is not deemed an authorized official, he could ask an authorized requestor — like a district attorney — to do so on the city’s behalf.
Ochoa is hopeful Paxton will accept the request and issue a legal opinion relatively quick. The process, however, could take months.
“I think this is an issue that’s on a lot of people’s radar, and I think we need guidance on it since it’s a hot topic,” he said, pointing to the increasing popularity of CBD products and the rise of stores across the state, including in Hidalgo County, dedicated to selling them.
One such establishment is The CBD Store in McAllen, which opened in October 2018.
Owner Daniel Brooke said he believes the products he sells — all of which do not contain THC, or less than .3 percent THC — are legal to sell and consume.
“As long as your oils contain less than .3 percent THC then that’s considered hemp, and as long as it’s considered hemp, then it’s legal in all 50 states,” Brooke said.
The products he carries contain QR codes that allow someone to look-up third-party test results on the products’ THC levels, and he advises customers to keep the packaging and have it on hand if questioned by law enforcement.
Confusion over the legality stems in part from a misunderstanding that people cannot get high from CBD products, Brooke said. Instead, he said, the focus should be on hemp’s medicinal benefits.
Various lawmakers have filed bills this legislative session to expand the list of medical conditions that qualify for CBD and to expand the state’s medical marijuana program.
But in the meantime, Edinburg’s city attorney said in his letter to the AG, residents, local businesses and police officers need to be on the same page as to what is and isn’t legal in the state.
Editor’s Note: This story was updated to correct the THC percentages.