How delta-8 is changing the landscape on legalizing weed in Texas

Though one of several bills to decriminalize marijuana recently passed a legislative committee, advocates acknowledge it has slim odds of being adopted in Texas this legislative session. But they hope lawmakers will expand use of the drug for medical reasons and work to lessen criminal penalties. 

Top state lawmakers have long opposed legalization, despite a recent state poll that showed 67 percent of Texans favor allowing recreational use.

In the meantime, many residents have turned to hemp products such as delta-8 as an alternative to the state’s medical marijuana program.

Marijuana reform is “one of the issues where there’s a huge disconnect between public opinion and elected official action,” said Mike Siegel, political director of the progressive group Ground Game Texas. 

Regardless of public sentiment, legalization is unlikely to happen over the objections of Gov. Greg Abbott and Lt. Gov. Dan Patrick. 

Abbott has said he supports reducing the criminal penalty for minor marijuana possession charges but not legalizing it outright. 

Texas NORML’s Executive Director Jax James said some bills might have a chance this session, such as letting doctors decide who can benefit from cannabis, raising THC potency in medical marijuana and reducing penalties for marijuana-related offenses.

“My goal this time around would be for us to have some hearings to really advance the conversation on what (marijuana reform) looks like here in Texas,” James said.

Texas marijuana timeline

In Texas, marijuana was strictly illegal until a 2015 law allowed low-level THC cannabis oil to be used as a treatment for epilepsy in what became known as the Texas Compassionate Use Program.

The law was amended in 2021 to raise the THC cap on medical marijuana from 0.5 percent to 1 percent. Comparatively, recreational marijuana often can be 15 to 21 percent THC, according to research by the University of Southern California.

“Texas needs to let cancer victims and others have “access to the medical and therapeutic options whenever they’re trying to treat (the) serious conditions that they’re living with,” James said.

Currently, the qualifying conditions for the state’s compassionate use program include epilepsy, multiple sclerosis, spasticity, autism, ALS, terminal cancer and neurodegenerative disease.

Army Veteran, Ty Cobb, shops for CBD gummies which he says helps reduce his anxiety at Rock and Roll It Vape Shop on Saturday February 25,2023 in Houston, TX. “ Edibles enable me to process and understand my emotions and high levels of anxiety. I have a better quality of life and am not so uptight and intense.” He said.

Army Veteran, Ty Cobb, shops for CBD gummies which he says helps reduce his anxiety at Rock and Roll It Vape Shop on Saturday February 25,2023 in Houston, TX. “ Edibles enable me to process and understand my emotions and high levels of anxiety. I have a better quality of life and am not so uptight and intense.” He said.

Raquel Natalicchio/Staff photographer

Delta-8, the disruptor

While the uphill battle for marijuana legalization and medical program expansion continues, Texans have been forced to look for alternatives for pain relief, such as hemp products like delta-8. 

Delta-8 is defined by the FDA as one of over 100 cannabinoids produced in the cannabis plant. But delta-8 also can be derived from hemp, and it exploded in popularity in 2019, following the legalization of hemp production in Texas.

So it’s legal, even though it has many effects similar to those of illegal marijuana. State legislators, including state Sen. Charles Perry, continue to propose legislation effectively banning the product.

For now, restrictions on the Compassionate Use Program effectively shut out the majority of Texans in need of pain relief, including veterans suffering from chronic pain among other ailments.

But the pushback and possible ban on delta-8  could mean the end to the current methods of self-medication for many Texans.

“I watched the hearing, and every single person who testified in support of delta-8 talked about using it medically because they can’t get into TCUP or they can’t afford to keep up with the expenses,” Texas attorney and cannabis lobbyist Susan Hays said.

What the polling shows

A University of Houston poll published on Feb. 2 showed Texans continue to strongly favor marijuana legalization and reform for adults. In addition to more than two-thirds favoring legalizing marijuana, 82 percent support allowing cannabis to be used for medical reasons.  The poll of 1,200 adults had a 2.8-point margin of error.

“Well over a majority of Texans agree that a regulated adult-use cannabis market is the best path forward for Texas. However, in our state, we have our laws change through the Legislature, and that can take time,” James said. 

With Patrick presiding over the Senate it means “that’s where bills tend to live and die,” she said.

Possession penalties vary by locale

Despite state reluctance, cities have begun to push for marijuana possession decriminalization, reducing penalties to eliminate jail time for minor possession charges. Ground Game Texas has focused its efforts on supporting local initiatives and pushing cities to further loosen penalties for misdemeanor possession. 

The group recently collected 37,000 signatures in San Antonio to place an initiative on the city’s May ballot that virtually decriminalizes marijuana. While critics say it is unenforceable, the initiative states, “San Antonio police officers shall not issue citations or make arrests for Class A or Class B misdemeanor possession of marijuana offenses,” with limited exceptions.

Ray of hope for pro-weed voters

James said she does have some optimism this session. For instance, Rep. Joe Moody, D-El Paso, who has been working to ease marijuana penalties, has been named House Criminal Jurisprudence Committee chairman.

“I’m hopeful that the groundwork that he’s laid by being a great advocate for criminal justice reform and his relationship with the speaker will help ensure that that bill advances,” James said.

Changes sought for medical program

Those in the compassionate use program have pushed for raising the THC percentages to make it more cost-effective for patients and allow access to multiple products.

Rep. Stephanie Klick, R-Fort Worth, has proposed increasing THC in medical cannabis products from 1 percent to 5 percent. 

Such a change could improve conditions for many patients, said Chase Bearden, the deputy director of the Coalition of Texans with Disabilities.

He said current patients have to double or triple up on prescribed medical marijuana products to get relief because of the low potency. That gets expensive, he said.

“By increasing the percent, we can make it to where it is actually a more cost-effective program,” Bearden said.

Most advocates also are pushing for increasing the number of illnesses that can be treated with marijuana. The number of patients enrolled in the Compassionate Use Program has grown to 45,440.

The lack of inclusion of different medical conditions means that chronically ill individuals often look for solutions elsewhere, experts said.

“The program definitely needs to be expanded to allow more people into the program that are wanting to try,” Bearden said. “Those who currently aren’t in the framework of what’s allowed in Texas, their only choice is trying in the black market, going to a different state or taking a different medication that may not give them the best outcomes.”

State senator has dad in mind

State Sen. José Menéndez, D-San Antonio, is proposing expanding the state medical cannabis program so more Texans don’t have to break the law for pain management.

Menéndez said he is personally interested in the cause because he saw his father, diagnosed with cancer in 2013, suffer from chemotherapy. When they learned marijuana could alleviate painful symptoms, Menéndez said his father didn’t want to do something illegal, even though it could have helped him.

“Like many law-abiding citizens, he didn’t want to break the law. Even though they’re suffering, they don’t want to break the law and access something that’s safe and able to help,” Menéndez said.

Regardless of incremental marijuana reforms the state has made, expanding medical use is long overdue, Menéndez said.

“I think it’s time for us to get our heads out of the sand and realize that our legal adults are accessing it and know exactly what it is,” Menéndez said. “I would love to see Texas move forward. The smart thing would be for total regulation but we should, at minimum, start with medical.”

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