What should Texas do about cannabis?

Lots of candidates ⎯ Democrats and Republicans ⎯ are talking about legalizing marijuana, but what will that mean in practice? Like most governing, it’s easy to promise but harder to implement in real life. As a cannabis lawyer I can and will lead Texas to do cannabis right.

Let’s start with the words: “marijuana” is a slang word used to politicize the plant that was injected into our laws nearly one hundred years ago. The plant is Cannabis sativa. The difference between hemp and marijuana is a legal line in the sand drawn at 0.3% delta-9 tetrahydrocannabinol (THC) by dry weight. Different varieties of cannabis will produce different amounts of THC and CBD (just like different tomato plants produce different colors, sizes, and flavors), but it’s all the same plant.

The cannabis plant produces hundreds of different chemicals, most of which are considered therapeutic. The most studied class are cannabinoids such as THC or cannabidiol (CBD). The second most studied class are terpenes ⎯ which give cannabis (or basil or lemons or pine trees) its smell. Together cannabinoids, terpenes, and other chemicals found in cannabis are a synergistic offering of healing for humans and animals.

Some may still think cannabis is addictive or harmful. But now 37 states have full medical cannabis programs and 18 states have legalized cannabis including our next-door neighbor, New Mexico. And the sky has not fallen. Instead, these states see concrete benefits from drops in opioid deaths, 1 2 3 and public spending on prescription drugs, 4 to an improved quality of life for those suffering from chronic paid or PTSD as they substitute cannabis for opioids and other prescription drugs with serious side effects.

Cannabis is not magically helpful for everyone. Some people are genetically wired to have unpleasant reactions. But cannabis does have life changing benefits for many people from veterans and sex assault victims suffering from PTSD, to people struggling with chronic pain, to a busy mom who just wants a good night’s sleep.

Texas needs to make some big changes and make them fast. We have an anemic “low-THC” medical cannabis program that limits what types of diseases and symptoms can be treated as if legislators know more about practicing medicine than doctors. The program also purports to cap the THC level at 1%. Which is, well, dumb. Medicine comes in milligrams, not percentages.  

Our hemp program is more heavily regulated than the medical cannabis program requiring third-party independent labs to test harvested hemp to make sure the THC levels are low enough. Reliable testing and accurate labeling are essential to consumer health and safety ⎯ which is why black-market products can be so dangerous. Black market products aren’t tested and labeled reliably and can have dangerous pesticides, molds, and additives in them.

And while more and more states legalize around us, more and more cannabis products are coming across the border ⎯ and not the one the Republicans want to build a wall on. Cannabis is here. Texas just isn’t dealing with it. Meanwhile, Texas is missing out on significant economic development opportunities and tax revenues that could benefit all Texans.

As tough as current Texas leaders like to sound, ironically, their failure to deal with cannabis reform and adequately fund criminal justice has created a void, and the market will always fill a void where there is money to be made. Our forensic crime labs are hideously underfunded and lack the ability to test mystery substances in black-market vape pens much less process rape kits and dangerous drugs quickly. In short, Texas is doing cannabis bass-ackward. We need to #FundCriminalJustice and legalize cannabis the right way.

In the name of conservatism, some only want to “decriminalize” but not “legalize.” But that would only lead to more black-market traffic. Decriminalization, legalization, and expansion of medical cannabis are a three-legged stool. You have to establish each leg in coordination or the stool collapses.

Texas should move forward quickly by learning from the mistakes and successes of other states. A healthy cannabis regulatory regime should focus on some core values:

  • Cannabis should not be regulated more heavily than other products unless there is a valid scientific, medical, or public safety reason to do so.
  • The regime should promote public health and safety while creating economic opportunity for as many Texans as possible.
  • Regulations and taxation should accomplish a clear goal without economically burdening the industry ⎯ or patients.

Now, for some details:

  • Texas is far behind other states, but by reasonably regulating the industry and taxing wisely Texas can leap ahead given its diverse growing climates, strong agricultural sector, transportation infrastructure, and medical research institutions ⎯ not to mention a market two-thirds the size of Canada.
  • Encourage a broad range of products, potency, and cannabis varieties so that physicians, patients, and consumers can experiment and choose what’s right for their individual endocannabinoid system (ECS). (The ECS is the primary master regulation system for bringing the body back into a state of balance; it regulates pain, inflammation, mood, sleep, cognition, and more.) As other states implemented adult-use, medical product scope and availability often suffer.
  • Prohibit use by minors without a prescription, but address offenders with health education, not criminal or juvenile charges.
  • Require third-party independent full spectrum testing and labeling of all products meaning both dominant cannabinoids and terpenes. Most legal states only require labeling of THC and CBD potency.
  • Prohibit marketing and packaging that attracts children. Require child-proof packaging.
  • Distribution should make product available to anyone anywhere in Texas. (Right now there are only three licensed medical cannabis companies and they are all in the Austin area.) Allow dispensaries to deliver and have drive-throughs to help people with disabilities access their medicine.
  • Add low-cost research licenses so that scientists, researchers, and quality control personnel can legally possess cannabis, including plants and products outside the consumer supply chain to help us learn more.
  • Abandon the condition lists and let doctors ⎯ not legislators ⎯ practice medicine.
  • Eliminate the THC% cap. Doctors do not dose in percentages; they dose in milligrams. Limiting doses interferes with the practice of medicine and keeps patients from the doses they need.
  • Prohibit dispensary personnel from giving medical advice or making unsupported claims about the effects of cannabis.
  • Excess taxation stifles the industry and innovation without suppressing the black market. Don’t be California where high taxes, high regulatory costs plus local taxation pile-on stokes the black market.
  • Medicine should never be taxed to the patients. A purchase filling a medical cannabis prescription should mean no taxes paid on that product.
  • The net benefit to the state should consider both tax revenue and criminal justice cost savings to state and local governments ⎯ something the large urban counties that have chosen not to arrest people for marijuana possession are already enjoying leaving more resources to pursue violent criminals.
  • Colorado dedicates part of its cannabis tax revenue to medical and public health research and to youth education. Texas can improve on that model and use cannabis taxes to help fill holes in public health care funding whether for physical or mental health care as well as educate kids and adults.
  • Better fund forensic crime labs to identify harmful black-market drugs, counterfeit and unlicensed products, as well as solving violent crimes. (Remember that rape kit backlog? It’s still there.)
  • Currently, our state police, DPS, regulates medical cannabis, but a law enforcement agency is not well suited to regulating a health care program. Cannabis regulation draws from agriculture, health, law enforcement, revenue, and professional licensing agencies.
  • Create a Cannabis Commission whether independent or as part of an existing agency with the scientific, medical, and testing expertise to effectively regulate cannabis use by ensuring key personnel are funded and receive input from agencies relevant to cannabis medicine and experts in the community.
  • Ensure that the rules are enforced by funding staff, their training, and state labs, or bad actors will continue to flood the market with potentially dangerous products.
  • Enlist public research institutions both for physical and mental health studies, as well as agricultural innovations and sociological analysis.
  • Collect data from license holders so the state can understand the market’s fluctuations, trends, and anomalies that may warrant legislative or regulatory changes.
  • Require a task force of medical, legal, public health, industry specialists, and other stakeholders to meet with agency rule-makers to advise on the cannabis industry, the medicine, and best practices.
  • Immediately decriminalize so that criminal justice savings can quickly be recognized statewide.
  • Require the regulating agency to monitor “statewide access” ⎯ a goal already in state law we are far from reaching ⎯ and market stability then roll out licenses in competitive rounds over time until the market reaches statewide access and stable pricing. Under-licensing leads to high prices and monopolies (see Florida). Over-licensing leads to market flooding and lax oversight (see Oklahoma). Don’t be Florida or Oklahoma!