Texas Gov. Greg Abbott may regulate THC via executive order. Is that legal?
Texas Gov. Greg Abbott may issue an executive order imposing regulations on Texas’ THC industry, according to a report from The Texas Tribune.
Whether that action is legal depends on the details of the order and how its executed, according to one legal expert with a background in Texas’ cannabis industry.
The Texas Tribune, citing three unnamed sources who spoke with the governor’s office, said Abbott plans to soon issue an executive order regulating THC and an setting the age limit to buy THC products at 21. It’s expected that Abbott would direct the Texas Department of State Health Services to create rules governing THC, including the age requirement to buy products or enter certain businesses, as well as rules around ID checking, distance from schools, labeling, THC content testing and fee increases, the Tribune reports.
A spokesperson for Abbott declined to confirm the Texas Tribune’s report.
The possible order comes after the Texas Legislature adjourned a second special session without passing new regulations on the industry that has boomed since Texas legalized the cultivation and sale of hemp in 2019.
Though hemp and marijuana are both forms of cannabis, the law defined marijuana as having a delta-9 THC concentration above 0.3% by dry weight. Products below that level are legal hemp. Since the law and its federal counterpart went into effect, consumable hemp products like delta-8 and delta-9 gummies, drinks and vapes that can produce a high have been readily available at stores and gas stations.
Lt. Gov. Dan Patrick has championed a ban of consumable hemp products, and a bill to that effect passed during the regular session. It would have banned consumable hemp products containing a cannabinoid other than CBD or CBG, which do not produce a high.
Abbott vetoed the legislation, predicting legal challenges. During subsequent special legislative sessions, he called for age restrictions and regulations for hemp-derived products. Lawmakers adjourned their second special session last week.
There are ways Abbott could legally regulate the THC industry through an executive order, said Susan Hays, a lawyer who also lobbies for the cannabis industry and is familiar with cannabis law. Hays is also a former Democratic candidate for Texas agriculture commissioner.
“The legality of any executive order depends on how he gets there, and what’s the subject matter,” Hays said in a Tuesday interview. “Does he get their purely by the order or also by directing rule making by the agency? And is the subject matter within the scope of our current hemp laws?”
Not having seen the text of a potential order, it’s hard to say whether Abbott would be acting beyond his scope of authority. A Texas governor’s executive power is more limited than that of a U.S. president, Hays said.
One route that could fall within Abbott’s authority could be to declare a public health emergency, similar to those during COVID, around the issue of young people having access to THC products.
“Few people would complain if he declared an emergency and issued an order banning sales to people under 21, because cannabis can be harmful to young people,” Hays said.
Abbott could also direct the the Department of State Health Services to create rules around THC regulation, which is what is expected, according to The Tribune’s report.
Or, he could allocate emergency funding to the department for enforcement of current regulations.
“That’s totally legal,” Hays said.
Executive action that could go beyond Abbott’s scope of authority would be things like an outright ban on products like hemp beverages or capping the amount of cannabinoids in products, beyond delta-9, Hays said.
“The executive can’t make up law,” Hays said.
Sen. Charles Perry, a Lubbock Republican, and Rep. Gary Van Deaver, a New Boston Republican, carried the primary THC bills during the past special session. Perry’s office did not return requests for comment. A representative from Van Deaver’s office said the lawmaker was not available for an interview until after any executive orders are officially issued.
Rep. Charlie Geren, a Fort Worth Republican, carried a bill during the special session that would have set an age limit for the products. In a phone call Tuesday, Geren said he hadn’t been consulted by the governor about an executive order.
