Russell: Joining us here on The Texas Hemp Show podcast number 59 again is Lisa Pitman from Zuber Lawler Attorneys. And Ms. Pitman is a pioneering figure in the emerging legalized hemp cannabis industry here in Texas, and Ms. Pitman is an appointee to the Texas Department of Agricultural Industrial Hemp Advisory Council. She’s also a non-resident fellow of the Drug Policy Program at Rice University. Ms. Pittman presented the American Bar Association’s first Marijuana Law CLE at its annual meeting in New York in 2017, resulting in the creation of the American Bar Association’s Task Force on Cannabis Law and Policy, for which she is the chair in 2021-2022, award winning attorney and honors achievements. You are the woman of the hour, Lisa, telling us what’s going on with a lot of the questions that some of our not only retailers but farmers alike are probably have during this week with regards to the Delta-8 issue. And you have written numerous times for The Texas Reporter. My most memorable recent article, you guys did was the one regarding the DEA interim rule on the smokable hemp ban, maybe five or six months ago. But anyway, Lisa, welcome to the show. And how are you doing?
Lisa: Great. Thanks for having me.
Russell: Well, glad to get you back here on The Texas Henp Show. It’s been a good year, probably about a year, actually, since we had you on last. What do we know about the new decisions by DSHS? And they recently made this post on the website. Did the post make delta-8 illegal?
Lisa: Delta-8 was already illegal. We have known this stance of DSHS for a year now. They objected to the DEA interim final rule in August 2020, which was to conform the US Controlled Substances Act to the fact that the farm bill happened and the farm bill created an exception of the definition for marijuana for hemp. Now each state has its own Controlled Substances Act as well, and so the States can either fall in line with what the Feds do, or they can object to it. So in this case, the Health and Human Services Commissioner objected to it. Posted notice September, held a hearing in October. They later tweaked the definition of hemp in Texas and drastically changed the definition of Tetrahydrocannabinol in that they broadened it to include all THCs and analogs, et cetera. And they basically flipped the definition of hemp on its head. So where hemp, as we know the definition to be all of the derivatives and isomers and so forth. Everything deriving from hemp is legal on the definition of tetrahydrocannabinol. They changed it to where all THCs are illegal, even if they come from hemp unless it is the Delta-9 below .3%. And so that was finalized in January, and notice was placed in the Texas Register in March. But the unusual thing that they did was instead of posting it in text that you could search, they posted a picture of it. So that made it difficult for you to search it in the register, even if you knew about it and you were looking at it. So the question for the court now is was that sufficient notice or not, under the law? And then Additionally, you’re probably aware that DSHS testified in May the hearing on the Hemp bill to ban delta-8, stating once again their position that delta-8 is already illegal. And there’s been a few other memos. So it’s going to be interesting to see where the court comes down on this, because DSHS did really put out a lot of notices about it. You just had to really be paying close attention.
Russell: Lisa, is that common for them to put something out on a PDF format as the lawsuit or the motion for the TRO was put up, although denied by Judge Harger last Friday or Monday of this week. But is that an unusual procedure to post their position on something in the PDF format on a non-searchable way like that?
Lisa: It is kind of unusual. But I will point out that in the regulations governing testing of consumable hemp products, there’s a full microbial panel that you have to test for, and they just put that into a PDF and dumped that into all the other rules. So you would have had to know that, hey, there’s this little PDF file attached to the rules that you could search for online.
Jesse: So the Texas Hemp Federation, we know, filed a lawsuit based on this just last week and that the motion for the TRO was denied by this judge in the 261st district. Can you speak to that?
Lisa: Yes. So the denial of the TRO is no comment on the merits of the case. To get a temporary restraining order, you have to show an imminent emergency, right away harm. And that’s the most pressing thing. And so here DSHS argued. Well, this has been on the controlled substances list for 40 years. They might have been referring to THC delta-8 derived from marijuana. And as I mentioned, it’s been known for a year already, just positioned. So the fact that they just recently found out about it doesn’t create an emergency situation for which TRO is warranted. And a couple of other issues.
Lisa: To get a TRO, you also have to show that you cannot be compensated by money in any way. And because this case is about, well, my business is going to be impacted by this all that can be compensated by money. So that’s another reason why it didn’t qualify for TRO. So on November 5, they’ll have a full hearing on the merits where I expect the judge will consider these issues of law. It really is a matter of law it’s not something where there will be witnesses. Here’s what DSHS are required to do. Here’s what they did do. And what is that sufficient under the law or not?
What could we consider something that would be not compensable by financial means? Would arrest fit that description?
Lisa: It could I mean, then you’re dealing with the interplay of criminal law. The situation might be, let’s say you have an employee who is stealing all of your company secrets or holding something in your company hostage that prevents you from doing business or in a domestic situation, you’re fearing violence. It’s got to be like an actual emergency. But there’s nothing else that can be done other than to get what’s called injunctive relief, equitable relief. So it’s not something that can be compensated by money damages. It’s another picture.
Jesse: Thank you for clarifying that, Lisa,
Russell: The States that already have a cannabis program have been outlawing delta-8, I think as a fear or perhaps maybe a threatened fear of the emerging delta-8 market for the states that have prominent cannabis programs. We don’t have a recreational program in the Lone Star State, but do you feel like has that been a common thread with the other States that they quickly outlawed delta-8 for fear of infringing on their cannabis markets?
Lisa: That is the case in Colorado, for example, there’s a marijuana lobby, and they want dibs on what gets you high. And another issue is it undercuts their market, too, because if somebody can just go get this other thing and not go through and pay the marijuana prices and the marijuana taxes, then the marijuana business is losing out on all of that. In some other States where it’s commonly thought to be illegal, most of them is for a similar situation of Texas, it’s the definition of marijuana or the definition of THCs that makes it illegal. It’s only been in the past year. I guess that there’s several States that have specifically banned delta-8 on purpose. It wasn’t already illegal for that other reason,
Jesse: I want to ask with the bill we passed back in 2019 with that legislative session, is there any possibility that the language we put into law in Texas may have effect on this case with how we define THC from hemp?
Lisa: Well, there’s a little bit of a conflict there, and that’s where the confusion is. That’s why I said that how they change the definition of THC flips the definition of hemp in opposite ways. We’ll just have to see on that.
Jesse: Thank you.
Russell: Well, Texas has a very small medical program in the Lone Star State. Are there lawmakers applying pressure to DSHS to rule this way or kind of just if it was already stated? It’s just confusing that this has gotten into a bigger issue here recently because I don’t know that there’s anyone enforcing any of this, Lisa.
Lisa: Well, when hemp was legalized, it was under the impression that this was for grain, industrial uses, Cbd. No one at the time thought either at the federal level or at the state levels that chemists were going to figure out how to make psychoactive cannabinoids and come up with all of the things that they’ve come up with. And so there’s been a response to that, especially in the conservative anti-marijuana states. I think that Senator Perry made some comments in the hearing like, “Well, I’ll just take yank the whole hint program away. This isn’t what we intended.” There’s a little bit of that.
Russell: Lisa Pitman from Zuber Lawler, telling us what’s to make with everything going on with our delta-8 situation, delta-8 was always illegal, not recently illegal. It was always illegal. But what are retailers supposed to think, Lisa? I guess they just have to take this inventory off of their shelves now and stay the course. I guess that seems to be what I think a lot of I’m hearing is they’re just going to have to stop selling delta-8 for fear of enforcement.
Lisa: That’s a real risk. Honestly, though, it’s been a looming threat that’s been out there for a while. I already counsel my clients how to go about it very carefully and cautiously and how they source it, market it, present it and so forth.
Russell: Yeah, well, I wonder some of them are going to move on this and some aren’t. But I guess the real concern is the enforcement and that is in the responsibility of DPS. Have arrest been made that you know, of. Lisa, have you heard anything I heard maybe one in the state might have gotten one or two, but I don’t know if these are directly related to the DSHS. Recent posting.
Lisa: Yeah, there’s been a number of arrests made during the past year. Actually, most are headshops. And what happens there typically is a cop might come in undercover, take the products, test them, and then low and behold, these delta-8 products test hot over .3% THC or total THC. And so then that turns into a marijuana felony marijuana distribution charge. As far as folks just pull over on the side of the road, I get a lot of calls, obviously. And typically, once it’s shown that it’s hemp, they’re let go.
Russell: But they still spend a night in jail and get the charge. And ultimately, maybe the charges are dropped if they provide the proof that it’s a hemp product. But I always say that we need to create better laws for law enforcement officers. It really puts the law enforcement officers in a precarious state, don’t you think, Lisa? They’ve got enough things I think to deal with. And I don’t think prosecuting delta-8 possessions is really on the forefront of law enforcement right now.
Lisa: I don’t either. They’ve got to deal with fentanyl and meth coming across the border in record proportions and killing all of us. So that’s what they’re tasked with on the drug front. And as far as marijuana in the major Metropolitan cities, they’re not really arresting people for simple possession anymore. And it’s not really that they’ve softened on marijuana. It’s that a prosecutor can’t get a jury to put someone away anymore for a joint. And similarly, a prosecutor is not going to take a case you can’t win because they want to have a winning record. So with how complicated the law is here to try to explain that to a jury, get a jury to understand and improve that the retailer knew the law, too, and chose to disregard it and have that criminal intent to sell it anyway. That’s going to be really hard for a prosecutor to pull off. Dps is charged with public safety all over the entire state on a lot of matters, and I would think that if they just focused on this, there might be some backlash over it. Why are you wasting your time and money on that? When we have so much more important things?
Russell. Their role has been protecting the border to some degree in recent months, DPS as well. So that’s the thing. And that’s the weird part of all of this is that will they really enforce anything on this in the meantime?
Lisa: Yeah, it would be a headache for a cop to pursue and a headache to enforce. I’ve been doing this since 2015 and under the 2014 farm bills. So I’ve seen the evolution of the legalization of hemp in Texas and cops being confused about hemp and marijuana, especially rural. They can barely tell the difference there and know what to do there, let alone let’s get even more granular into the delta-8.
Jesse: So from our understanding, there’s going to be another hearing on November 5 that deals with a temporary injunction. What would you say happens next with that? How does that work?
Lisa: So that’s going to be more like a trial on the merits where the judge is going to consider what the plaintiff is alleging, what DSHS did, DSHS do what they were supposed to do or not, and the judge will make a decision there. And then a temporary injunction is also an extraordinary remedy for the judge to say okay, we’re not going to allow enforcement of the Controlled Substances Act. That’s going to be unusual. I’m looking forward to seeing what they do there.
Russell: Well, we’re all following this, and I know it’s a big concern for the retail side of the business that was already making these products available with impunity. They were making these products available anyway,
Lisa: I wanna follow up about something earlier about the enforcement, that’s another issue in the lawsuit is whether the right parties are in the lawsuit. Because DSHS made the rule but DSHS doesn’t enforce the Controlled Substances Act. So can the court enjoin DSHS? DSHS isn’t the one that enforces it. You know, it’s DPS that needs to be injured from enforcing it. So that’ll be another interesting, interesting question.
Jesse: I know that one of the DSHS statements says that they don’t create regulation. Who technically would we say created this rule then if it wasn’t DSHS, who claims because they put up that we don’t make these regulations, I guess who should it be pointed towards for the proper party
Lisa: As far as the drug schedules?
Lisa: That’s done by the Health and Human Services Commissioner.
Russell: That’s right. The Commissioner can make that.
Lisa: Yeah. In fact, if you look at the pleadings, there’s a footnote by the state that takes you to the web page that shows all of the adjustments to the schedules that the health Commissioner has made. It’s very common. They are always putting things on, taking things off the schedule all the time.
Jesse: Thank you for that. Thank you for that input.
Russell: Well, any final thoughts, Lisa, as we close here on this segment with you, we had you scheduled months ago on this show just to have you on again. And then low and behold, all this kind of happens. And this has become a hot topic with delta-8 in the last week or so. Any final thoughts as we look towards November 5 and seeing the results of the hearing.
Lisa: Yeah. What’s really changed is the public awareness. Once a big fuss was made about this, in a way, I feel like it’s kind of sabotaging because before this, this product was flying under the radar quite nicely and without law enforcement, as we have said. And so now it has been brought to the forefront of everyone’s attention, including law enforcement, including DSHS who was flooded by phone calls, which is not the best way to go about things. Really. Now we’re in more uncertain times than we were before. Like I said, there’s always been that looming threat, but it was just kind of out there.
Russell: Well, all of us in the space, Lisa, within the hemp or CBD community, we’ve all kind of danced around the delta-8 issue, but all of a sudden now on 6:30 News, KXAN is talking about this, and you’re right. It’s a hot topic right now that the rest of the public that doesn’t follow this, traditionally, this is all being like you said, brought in (the light) and the media is really covering all of this now.
Lisa: Yes sadly, they certainly are, giving lots of interviews.
Russell: I bet you have. I think I saw you on KXAN last week one day.
Lisa: Yes you might have.
Jesse: Was it KVUE?
Russell:You were on on KVUE24, maybe even KXAN. But you are getting all of the calls. You are the Perry Mason of cannabis in Texas here, Lisa Pittman. How can folks get in touch with you, Lisa? Just to learn more about the good work that you do. And I know you’re fielding all these interviews with the media as this delta-8 thing gets going as a hot topic. But how can folks learn more about your work Lisa?
Lisa: You could email me at Lpittman@zuberlawler.com or the best way is to follow me on LinkedIn.
Russell: That’s right.
Lisa: Very careful content on things that I think are kind of within a narrow scope of what’s of interest to us in Texas and the south on all things cannabis and psychedelics.
Rusell: Well, it’s an exciting time, I think, as we move into the next phase of Texas lawmakers, we got a whole year before the next session gets going. It’s an exciting time, Lisa, to see what the Lone Star State. A lot of people are watching what Texas does with regards to cannabis in the long run, and we’ve made some progress here, but I think we still got some work to chew, but it’s deciding time to be in this space here in Texas. Definitely.
Lisa: It sure is. I have high hopes for 2023 for a more full fledged medical program.
Russell: Well, thank you so much for your time. Lisa Pittman joining us here on the Texas Hemp Show and you can check her out. Follow Lisa on her LinkedIn page. You will get plenty of information. She’s always got something great she’s posting on there and keeping us informed and educated on cannabis here in the Lone Star State. Thank you so much, Lisa.
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