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Texas Judge Upholds Delta-8 THC Ban In Initial Ruling, But The Fight Isn’t Over

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A Texas judge has ruled that the state’s ban on hemp products containing more than 0.3 percent delta-8 THC can remain in effect as a legal challenge moves through the process.

The cannabis company Hometown Hero filed a suit against the Texas Department of State Health Services (DSHS) last week, arguing that it improperly revised its hemp policy this month to specifically prohibit products with more than trace amounts of forms of THC other than delta-9, the most commonly known psychoactive compound in cannabis.

In a ruling dated Friday and announced on Monday, the court decided against the plaintiffs’ request to have a temporary restraining order imposed on the state. Subsequently, the hemp business said it will halt sales of certain products as it prepares for a November 5 hearing on a more consequential temporary injunction against the state.

These are just the first steps in yet another legal battle over hemp in the state following the plant’s legalization.

Delta-8 THC has surged in popularity, particularly in states with more restrictive marijuana laws. It produces intoxicating effects similar to delta-9 THC, but it can be synthetically produced by converting CBD derived from hemp. The novelty of delta-8 products has left legal loopholes, which is likely why DSHS moved to broadly prohibit products with more than 0.3 percent of any type of THC.

DSHS appears to have responded to this increased market demand and questions from hemp businesses by updating its policy with the broader interpretation of THC. Here’s what the department’s site now says:

“Texas Health and Safety Code Chapter 443 (HSC 443), established by House Bill 1325 (86th Legislature), allows Consumable Hemp Products in Texas that do not exceed 0.3% Delta-9 tetrahydrocannabinol (THC). All other forms of THC, including Delta-8 in any concentration and Delta-9 exceeding 0.3%, are considered Schedule I controlled substances.”

Hometown Hero had hoped to get a temporary restraining order against DSHS to prevent it from taking action against hemp businesses that sell delta-8 THC, but now it must wait to see what comes out of next month’s follow-up hearing.

“The DSHS stance flips the hemp definition on its head,” an attorney for the plaintiffs said in court on Friday, according to Texas Cannabis Collective.

The department, for its part, says it has not made any policy change and that delta-8 THC has been statutorily classified the same as delta-9 since hemp was legalized in 2019. A spokesperson said it simply “posted the clarification below on our website in response to recent requests from hemp growers who said that there was confusion in the industry about what was allowed in consumable hemp products.”

Activists have criticized DSHS for making hemp policy decisions without affording the public a real chance to participate.

“We expect the Department of State Health Services to always operate with full transparency,” Heather Fazio, director of Texans for Responsible Marijuana Policy, told Marijuana Moment. “It has been made abundantly clear that, by posting meeting notices in obscure locations, DSHS denied the public an opportunity to weigh in on proposed changes to the Controlled Substances Act.”

At the federal level, delta-8 THC has also captured the attention of agencies like the Food and Drug Administration (FDA) and Centers for Disease Control and Prevention. Regulators at those departments recently issued warnings about products containing the cannabinoid, saying they’ve seen a significant uptick in reported adverse health effects.

FDA also announced a plan this month to us “novel” data sources like Reddit to gain a better understanding of public health issues surrounding use of delta-8 THC and other cannabinoids such as CBD.

Back in Texas, the hemp industry has become familiarized with the court system as businesses have navigated the new law.

In the same district court where this new delta-8 THC lawsuit has been filed, a judge ruled in August that Texas’s ban on the production and sale of smokable hemp products is unconstitutional.

Judge Lora Livingston ruled in favor of plaintiffs—a group of hemp businesses who sued the DSHS over a ban on the manufacturing and selling of smokable cannabis products it imposed after the crop was legalized.

An appeals court had previously modified a prior injunction and determined that regulators couldn’t enforce a ban on the sales component of the smokable hemp market. But following the August ruling, there’s a permanent injunction that bars the state from prohibiting the full range of hemp activity.

Meanwhile, Texas activists are working to enact local reforms on marijuana.

Advocates in San Marcos, Texas recently launched a campaign to put marijuana decriminalization on the local ballot in 2022.

Just to the north of San Marcos, a separate campaign attempted to put cannabis decriminalization on Austin’s ballot this November, but activists have since shifted their strategy toward putting the measure in front of voters on the May 2022 ballot. They will also target additional cities next November.

There is no statewide, citizen-led initiative process that would enable advocates to put an issue like decriminalization or legalization on the Texas ballot. But at the local level, there are limited cases where activists can leverage home rule laws that allow for policy changes.

A strong majority of Texans back even broader reform, according to recent polling. Sixty percent of voters in the state support making cannabis legal “for any use,” signaling that local initiatives for more modest proposals like decriminalization will likely prevail where they qualify for local ballots.

This year’s legislative session in Texas saw numerous drug policy proposals advance, with bills to expand the state’s medical cannabis program and require a study into the therapeutic potential of certain psychedelics for military veterans having been enacted.

Advocates remain disappointed, however, that lawmakers were unable to pass more expansive cannabis bills—including a decriminalization proposal that cleared the House but saw no action in the Senate.

The House approved a cannabis decriminalization bill in 2019, but it did not advance in the Senate that session.

Top Federal Drug Agency Tells Congress About Marijuana Research Barriers Caused By Restrictive Scheduling

Photo courtesy of Brendan Cleak.

Marijuana Moment is made possible with support from readers. If you rely on our cannabis advocacy journalism to stay informed, please consider a monthly Patreon pledge.

Kyle Jaeger is Marijuana Moment's Sacramento-based senior editor. His work has also appeared in High Times, VICE and attn.

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Missouri Lawmakers Must Legalize Marijuana With Freedom In Mind, Former Prisoner Says (Op-Ed)

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“It is important that our elected officials consider what path may be best and ultimately fulfill the increasing demand from voters for greater liberty and freedom in our state.”

By Jeff Mizanskey, Missouri Independent

In 1984, I was arrested for felony possession of marijuana for a half-pound of marijuana, for which I served five years of probation.

In 1991, I was arrested for possession of two ounces of marijuana, for which I served 60 days in county prison.

Finally, in 1993, I was arrested as an accessory in a deal for seven pounds of marijuana, and although I had no intention of possession or distribution, a jury convicted me and a circuit court judge sentenced me to life in prison under Missouri’s now-repealed prior and persistent offender statute.

During the next 22 years, American voters came to the realization that marijuana was a very beneficial medicine with a low risk profile, and state by state began passing medical marijuana laws or outright legalization.

Ultimately, then-Missouri Gov. Jay Nixon commuted my sentence after state Rep. Shamed Dogan, R-Ballwin, filed legislation to require parole for marijuana offenders serving life sentences. My case was also supported by a national coalition of people and organizations who were shocked by the harshness of my sentence.

In 2018, Missouri voters passed a medical marijuana proposal at the ballot, which now allows people to obtain a physician’s recommendation for marijuana and has created a legal market for production and sales. The only controversy over legal medical marijuana has been over the restrictions on commercial licensing—85 percent of the over 2,200 applicants for marijuana business licenses were rejected in a process widely seen as arbitrary and unfair.

Now, two different ballot initiative campaigns, backed by different groups claiming to represent the marijuana industry, are competing to again change the Missouri Constitution to legalize recreational marijuana. But both of these proposals have significant flaws. Most significantly, both proposals create limits on personal marijuana possession and allow civil and criminal charges, including felonies, for possession of more than twice the possession limits.

Coupled with tight restrictions on commercial marijuana licensing, Missouri might continue to see a two-tiered system of justice and economic opportunity, where a privileged wealthy few are allowed to profit from legal marijuana sales while poor and politically weak Missourians continue to be sanctioned for the proposed crime of possessing too much marijuana.

By contrast, there is no other item of legal personal property that Missouri law creates a possession limit for, and I’ll point out specifically alcohol, our most dangerous drug, for which there are over 16,000 licenses for on and off premise sales registered in our state and no possession limits for individuals.

In January, the Missouri General Assembly will reconvene, and only the elected representatives of the people have the ability and the political will to consider these issues and take in input from all stakeholders. It is important that our elected officials consider what path may be best and ultimately fulfill the increasing demand from voters for greater liberty and freedom in our state.

Jeff Mizanskey is a resident of Sedalia and veteran of the United States Air Force. In 2015, he was released from a life sentence for nonviolent marijuana charges after then-Gov. Jay Nixon commuted his sentence.

This piece was fist published by Missouri Independent.

Ohio GOP Lawmakers File New Marijuana Legalization Bill

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Indiana GOP Lawmaker Plans Medical Marijuana Bill As Democrats Push Full Recreational Legalization

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“It polls higher than any other issue. We’ve seen 38 other states step up and do the right thing for their citizens. We know it saves lives. We know it offers a better quality of life.”

By Margaret Menge, The Center Square

Democrats in Indiana have launched a campaign to legalize marijuana in the state and appealed to business-friendly Republicans to join to help the state’s economy.

There is some support from Republicans.

“I have a medical cannabis bill ready to go,” Rep. Jim Lucas, R-Seymour, said.

He said the bill will be similar to the one he introduced in the last session of the Indiana General Assembly, which would permit the use of medical marijuana by people with “serious medical conditions” as determined by a doctor, and would permit the “cultivation, testing, processing, transportation and dispensing” of medical marijuana by people who hold a valid permit issued by the state.

It also would put the Indiana Department of Health in charge of implementing and enforcing the medical marijuana program.

Indiana is one of just a handful of states that has not legalized medical marijuana.

“It polls higher than any other issue,” Lucas said. “We’ve seen 38 other states step up and do the right thing for their citizens. We know it saves lives. We know it offers a better quality of life.”

In 2016, the national American Legion, which is based in Indianapolis, called on Congress to remove marijuana from Schedule I of the federal Controlled Substances Act and reclassify it to “recognize cannabis as a drug with potential medical value.”

The Legion has also pushed for more research to be done on marijuana related to its potential in treating post-traumatic stress disorder and traumatic brain injury among veterans of the wars in Iraq and Afghanistan, in particular.

The Indiana American Legion, however, has not taken a position on the issue, and did not discuss the bill Lucas introduced in the last session, spokesperson Josh Marshall said.

He said the issue would have to be reviewed by the organization’s executive committee before any action were taken on the issue in the upcoming session of the legislature, which begins January 3.

Meanwhile, Indiana Democrats are pushing to get the issue on the table.

Rep. Sue Errington, D-Muncie, is set to lead a “community talking circle” at a pizza place in Muncie today to hear from the public about legalizing medical marijuana.

“The reality is that medical cannabis is becoming an accepted and preferred method of treatment throughout the country,” Errington said in a statement from the Indiana House Democratic Caucus on November 29. “Medical cannabis is a safe, non-addictive alternative to opioids that could benefit Hoosiers who live with chronic pain and anxiety disorders, including our brave veterans who struggle with post-traumatic stress disorder. Those who have sacrificed so much for our state deserve an effective treatment for their pain, rather than a potential criminal record.”

Republicans hold a supermajority in both houses of the legislature and hold every statewide office. But legislative leaders—some of them—have appeared more open on the issue in recent years.

In 2018, the Republican floor leader in the Indiana House of Representatives, Rep. Matt Lehman, R-Berne, authored a resolution calling for an interim study committee to research medical marijuana.

“Hoosiers rightfully want to know what direction Indiana will take,” he said at the time. “I believe it is wise of policymakers to carefully gather public and professional input.”

Lehman told Fox59 last month that he thinks there’s “always room for discussion” about medical marijuana, but that he thought the federal government would have to act first, before Indiana takes action.

This story was first published by The Center Square.

Ohio GOP Lawmakers File New Marijuana Legalization Bill

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DEA Backs White House Plan To Streamline Research On Marijuana, Psychedelics And Other Schedule I Drugs

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The Drug Enforcement Administration (DEA) and National Institute On Drug Abuse (NIDA) say they are in favor of a White House proposal to streamline the process of researching Schedule I drugs like marijuana and certain psychedelics.

The agencies testified at a House Energy and Commerce subcommittee hearing on Thursday, expressing support for the Office of National Drug Control Policy (ONDCP) research plan. While the focus of the meeting was mostly on a controversial move to strictly classify fentanyl-related substances, the Biden administration proposal’s research components would also help address concerns within the scientific community about the difficulty of studying other Schedule I drugs.

DEA said in written testimony that “expanding access to Schedule I research is a critical part of DEA’s mission to protect public safety and health.”

“It is critical that the scientific and medical community study Schedule I substances, as some may turn out to have therapeutic value,” DEA Principal Deputy Administrator Louis Milione said. “DEA supports the administration’s legislative proposal’s expansion of access to Schedule I research. DEA looks forward to continuing to work with the research community and our interagency partners to facilitate Schedule I research.”

In general, what the administration is proposing is to align the research requirements for Schedule I drugs with those of less-restricted Schedule II drugs. Scientists and lawmakers have consistently pointed out that the existing rules for studying Schedule I controlled substances are excessively burdensome, limiting vital research.

Rather than having each scientist involved in a Schedule I drug study obtain DEA registration, ONDCP wants to make it so multiple researchers at a given institution would be allowed to participate under a single registration. The administration also proposed a policy change where a research institute with studies taking place over multiple locations would only require one overall registration instead of needing to have a specific one for each site.

Another change would allow certain researchers to move ahead with conducting their studies after submitting a notification to the Department of Justice instead of waiting for officials to affirmatively sign off on their proposals. ONDCP’s plan would also waive the requirement for additional inspections at research sites in some circumstances and allow researchers to manufacture small amounts of drugs without obtaining separate registrations. The latter component would not allow cultivation of marijuana, however.

“Even experienced researchers have reported that obtaining a new Schedule I registration, adding new substances to an existing registration, or getting approval for research protocol changes is time consuming,” NIDA Director Nora Volkow said in her testimony. “Unlike for Schedule II through V substances, new and amended Schedule I applications are referred by the DEA to the HHS for a review of the protocol and a determination of the qualifications and competency of the investigator.”

“Researchers have reported that sometimes these challenges impact Schedule I research and deter or prevent scientists from pursuing this critical work,” she said.

In an interview last week, Vokow said that even she—the top federal official overseeing drug research—is personally reluctant to conduct studies on Schedule I substances like marijuana because of the “cumbersome” rules that scientists face when investigating them.

When ONDCP first announced its proposed Schedule I policy changes in September, some experts tempered expectations about the practical effects of aligning Schedule I and Schedule II applications. The difference is largely a matter of extra paperwork for the more restrictive category, they contend.

Regardless, several lawmakers who attended Thursday’s subcommittee hearing expressed enthusiasm about the prospects of these policy changes.

“I’m particularly interested in eroding existing barriers of federal law that limit researchers at academic medical centers from studying Schedule I substances,” Rep. Doris Matsui (D-CA) said. “So I’m grateful that our research agencies are working to find effective solutions.”

Rep. Tony Cárdenas (D-CA) also weighed in, saying that “we all agree that the current scheduling classification system has made it very difficult for scientists to research the effects of scheduled compounds, which may have medicinal properties.”

“For example, we know that compounds in marijuana have legitimate and beneficial medical uses, despite it being Schedule I,” he said. “So I’m encouraged to see that efforts are being made to allow researchers to study the effects of various compounds. In this proposal.”

ONDCP’s intent to streamline research into Schedule I drugs has been notable and seems to be part of a theme that developed within the administration.

For example, DEA has repeatedly proposed significant increases in the production of marijuana, psilocybin and other psychedelics for research purposes, with the intent of aiding in the development of new federally approved therapeutic medications.

NIDA’s Volkow told Marijuana Moment in a recent interview that she was encouraged by DEA’s prior proposed increase in drug production quota. She also said that studies demonstrating the therapeutic benefits of psychedelics could be leading more people to experiment with substances like psilocybin.

But while the production developments are promising, advocates are still frustrated that these plants and fungi remain in the strictest drug category in the first place, especially considering the existing research that shows their medical value for certain conditions.

There has been at least one recent development in the fight to modernize marijuana research. President Joe Biden signed a massive infrastructure bill last month that includes provisions aimed at allowing researchers to study the actual cannabis that consumers are purchasing from state-legal dispensaries instead of having to use only government-grown cannabis.

But that’s just one of numerous research barriers that scientists have identified. A report that NIDA recently submitted to Congress stressed that the Schedule I status of controlled substances like marijuana is preventing or discouraging research into their potential risks and benefits.

A federal appeals court recently dismissed a petition to require the DEA to reevaluate cannabis’s scheduling under the Controlled Substances Act. However, one judge did say in a concurring opinion that the agency may soon be forced to consider a policy change anyway based on a misinterpretation of the therapeutic value of marijuana.

Meanwhile, DEA has given hemp businesses that sell delta-8 THC products a boost, with representatives making comments recently signaling that, at the federal level at least, it’s not a controlled substance at this time.

Separately, the Washington State attorney general’s office and lawyers representing cancer patients recently urged a federal appeals panel to push for a DEA policy change to allow people in end-of-life care to access psilocybin under state and federal right-to-try laws.

White House Pressed To Mediate Marijuana Finger-Pointing Between DEA And HHS

Photo courtesy of Brian Shamblen.

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