Texas’ largest law enforcement agency is moving away from arresting people for low-level marijuana offenses. It’s the latest development in the chaos that has surrounded pot prosecution after state lawmakers legalized hemp this year.
As of July 10, all Texas Department of Public Safety officers have been instructed not to arrest people with a misdemeanor amount of the suspected drug — less than 4 ounces in possession cases — if possible, according to an interoffice memo obtained by The Texas Tribune. Instead, they would issue a citation requiring a person to appear in court and face their criminal charges.
Those issued a citation for misdemeanor charges still face the same penalties if convicted — up to a year in jail and fine of $4,000.
“Departmental personnel are expected to continue enforcing marijuana related offenses,” the memo states. “However, effective immediately, personnel will cite and release for any misdemeanor amount of marijuana.”
The DPS policy change came about a week before Republican state leaders chastised prosecutors who have dropped marijuana cases or put them on hold because of the new law. A spokesperson for Abbott did not immediately respond to questions for this story.
The memo by Randall Prince, deputy director of law enforcement operations at DPS, was sent out to guide enforcement practices in light of the new hemp bill that passed the Texas Legislature, House Bill 1325, and was signed into law last month. Prince clarified that HB 1325 does not decriminalize marijuana, writing, “Because marijuana and hemp come from the same plant, it is difficult to definitively distinguish the two without a laboratory analysis.”
That difficulty has led prosecutors across the state to drop hundreds of low-level marijuana cases and stop accepting new ones, since lab testing to differentiate between now-legal hemp and illegal marijuana is not currently available in government crime labs.
But while prosecutors have said the lack of testing knocks down their ability to prove something is marijuana beyond a reasonable doubt and secure a guilty verdict, the DPS memo stated that officers can still find probable cause — the legal burden needed to charge someone with a crime. Prince said the possibility that a substance is hemp, not pot, doesn’t outweigh the burden. He added that hemp production in Texas hasn’t yet started, making it “unlikely that any substance encountered now is hemp.”
However, in Tarrant County, law enforcement has sent some pending felony cases to a private lab that can differentiate between hemp and marijuana. The difference is marked by the level of tetrahydrocannabinol, or THC, in a cannabis substance. THC is the part of cannabis that gets you high. If it contains less than 0.3% of THC, it’s legal hemp; otherwise, it’s illegal marijuana.
The first two substances that came back with test results in Tarrant County contained 13% and 15% THC — making them marijuana, according to a spokesperson for the Tarrant County District Attorney’s Office. The third substance in a marijuana case had 0.2% THC — which is legal hemp.
It’s still unclear how much the new policy will impact marijuana prosecutions statewide. DPS did not respond to questions about the memo or how often its officers arrested people on misdemeanor marijuana offenses before the law change. The last annual safety report on the agency’s website, from 2016, says highway patrol troopers conducted about 65,000 criminal arrests — with no indication of how many were for marijuana or any other drug. In all of Texas in 2016, law enforcement officers arrested about 86,000 people on misdemeanor marijuana charges, according to DPS statistics given to budget officials this year.
There are also restrictions to the policy directive. Under Texas law, citations in lieu of arrest are only allowed if the suspected crime happens in the same county where the person lives. Marijuana found during traffic stops outside of a suspect’s home county along Texas highways, where DPS troopers often patrol, would still result in arrests.
And perhaps most restrictive, the memo says DPS regions should first consult with local prosecutors before implementing the new policy of cite and release and “follow each prosecutors’ direction regarding whether to cite or arrest.”
A growing number of law enforcement agencies have cite-and-release policies for low-level charges. On the list are departments in Harris, Dallas, Bexar, Travis and Nueces counties. Some counties also offer defendants a diversion program to keep their records clean and keep them out of jail. But law enforcement agencies that employ cite-and-release policies have a court system in place to accept those cases.
“It’s a collaborative effort,” said Troy Gay, Austin Police Department’s chief of staff. “If a court does not have a cite-and-release process set up, there’s no way for any law enforcement in that jurisdiction to do that.”
Most counties don’t have that process, potentially stopping DPS cite-and-release practices in largest parts of Texas. Gay did not have information on how often people in Austin cited for misdemeanor offenses failed to show up to their court dates, but he said police are arresting people much less. From the first fiscal quarter of 2018 to 2019, the arrest rate for cite-and-release eligible offenses dropped 59%, he said. The Travis County attorney, who handles misdemeanor prosecution, did not immediately respond to questions about cite and release.
This article originally appeared in The Texas Tribune.
The Texas Tribune is a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.
Feds Send Warning Letter To Another CBD Company Over Medical Claims
The Food and Drug Administration (FDA) and Federal Trade Commission (FTC) sent a warning letter to a Florida-based CBD company on Tuesday, alleging that the business made several unsanctioned claims about the therapeutic benefits of their products.
The federal agencies accused Rooted Apothecary of unlawfully asserting that their cannabidiol products could treat symptoms of conditions such as ADHD, Parkinson’s disease, ear aches, ADHD and autism. Those claims appeared on the company’s website and social media accounts, they said.
Certain products appeared to be marketed as dietary supplements, which FDA currently prohibits as it works to develop an alternative regulatory scheme for CBD.
“Cannabis and cannabis-derived compounds are subject to the same laws and requirements as FDA-regulated products that contain any other substance,” Acting FDA Commissioner Ned Sharpless said in a press release. “We are working to protect Americans from companies marketing products with unsubstantiated claims that they prevent, diagnose, treat, or cure a number of diseases or conditions.”
FDA and FTC have issued a joint warning letter to a company marketing unapproved cannabidiol products with unsubstantiated claims to treat teething and ear pain in infants, autism, ADHD, Parkinson’s and Alzheimer’s disease, among other conditions/diseases. https://t.co/tsn4SBiGzH pic.twitter.com/sG3wyURMDS
— Dr. Ned Sharpless (@FDACommissioner) October 22, 2019
We’ve sent numerous warning letters that focus on matters of significant public health concern to CBD companies, and these actions should send a message to the broader market about complying with FDA requirements.
— Dr. Ned Sharpless (@FDACommissioner) October 22, 2019
“We’ve sent numerous warning letters that focus on matters of significant public health concern to CBD companies, and these actions should send a message to the broader market about complying with FDA requirements,” he said. “As we examine potential regulatory pathways for the lawful marketing of cannabis products, protecting and promoting public health through sound, science-based decision-making remains our top priority.”
FTC’s complaint with the company is that it violated a law that requires businesses that advertise medical claims about their products to have “competent and reliable scientific evidence” to back them up, which could include human clinical trials. Making or exaggerating such claims through “a product name, website name, metatags, or other means” without proper evidence is also prohibited.
FTC and @US_FDA warn Florida company marketing CBD products about claims related to treating autism, ADHD, Parkinson’s, Alzheimer’s, and other medical conditions: https://t.co/cAbxPPcxk8 pic.twitter.com/GdlttyBgxv
— FTC (@FTC) October 22, 2019
Rooted Apothecary must respond to the agencies within 15 working days to explain what steps it’s taking to resolve the issues. If the company fails to do so, it is subject to legal action, including the possible seizure of its products or an injunction. It may also have to compensate customers.
FDA emphasized that CBD products—other than the prescription medication Epidiolex, for the treatment of intractable epilepsy—are not currently allowed. But it also reiterated that the agency is in the process of developing rules that could allow for the lawful marketing of the compound.
In April, FDA sent warning letters to three other CBD companies that it said was making unauthorized claims about the medical benefits of their products. FTC also submitted warning letters to three separate CBD companies for allegedly advertising misleading statements about their products last month.
These letters are examples of the agency’s use of enforcement discretion. Former FDA Commissioner Scott Gottlieb, who recently suggested that the federal government should be involved in regulating state marijuana programs, clarified in March that the agency is only going after companies that make especially misleading claims about their products.
Senate Majority Leader Mitch McConnell (R-KY), who championed a provision of the 2018 Farm Bill federally legalizing hemp and its derivatives, has urged FDA to clear a path for the lawful marketing of CBD products by using enforcement discretion while it develops an interim final rule. A bipartisan group of lawmakers made a similar request in a letter sent to the agency last month.
“The FDA is working quickly to further clarify our regulatory approach for products containing cannabis and cannabis-derived compounds like CBD while using all available resources to monitor the marketplace and protect public health by taking action as needed against companies,” FDA Principal Deputy Commissioner Amy Abernethy said.
FDA’s working quickly to further clarify our regulatory approach for products with cannabis/cannabis-derivatives like CBD while using all available resources to monitor the marketplace & protect public health by taking action as needed against companies. https://t.co/HB9IhG2qud
— Dr. Amy Abernethy (@DrAbernethyFDA) October 22, 2019
We are committed to advancing our regulation of these products through an approach that, in line with our mission, prioritizes public health, fosters innovation and promotes consumer confidence. We plan to provide an update on our progress in this area in the near future.
— Dr. Amy Abernethy (@DrAbernethyFDA) October 22, 2019
“We recognize that there is significant public interest in cannabis and cannabis-derived compounds; however, we must work together to fill in the knowledge gaps about the science, safety and quality of many of these products,” she said. “We are committed to advancing our regulation of these products through an approach that, in line with our mission, prioritizes public health, fosters innovation and promotes consumer confidence.”
Photo courtesy of Kimzy Nanney.
GOP Senator Links Medical Marijuana Claims To Tobacco Industry Advertisements
Sen. John Cornyn (R-TX) said on Tuesday that claims about the therapeutic potential of marijuana remind him of decades-old tobacco industry advertisements asserting that the product had medical benefits.
In a speech on the Senate floor, Cornyn discussed a hearing that the International Narcotics Control Caucus, which he co-chairs, will hold on Wednesday to explore the public health impacts of cannabis. He said it was especially important to hear from experts about the subject as more states legalize marijuana and members of Congress, as well as Democratic presidential candidates, push to end federal prohibition.
Senate Hearing To Focus On Marijuana And Health This Week – https://t.co/aPZczm3X75
— Senator John Cornyn (@JohnCornyn) October 21, 2019
The senator made clear he’s skeptical about marijuana’s health benefits.
“There’s no shortage of people who claim that marijuana has endless health benefits and can help patients struggling from everything from epilepsy to anxiety to cancer treatments,” he said. “This reminds me of some of the advertising we saw from the tobacco industry years ago where they actually claimed public health benefits from smoking tobacco, which we know as a matter of fact were false and that tobacco contains nicotine, an addictive drug, and is implicated with cancers of different kinds.”
“We’re hearing a lot of the same happy talk with regard to marijuana and none of the facts that we need to understand about the public health impact of marijuana use,” he said.
While Cornyn recognized there’s significant support for cannabis reform, he said that ” for the number of voices in support of legalization, there are even more unanswered questions about both the short- and long-term public health effects.”
He expressed concern about increased levels of THC concentration in cannabis products and stated that it’s “true that for some people that marijuana can indeed be addictive.”
“There’s simply a lack of scientific evidence to determine the link between marijuana and various health risks, and that’s something I would think Congress and the American people would want to know before we proceed further down this path,” Cornyn said. “We don’t know enough about how this could impair cognitive function or capacity or increase the risk of mental illness or perhaps serve as a gateway for other drugs that are even more damaging to the health of a young person.”
The senator made similar remarks during a conversation with a former White House drug czar in August. He said it was important to address the public health impacts of cannabis before moving forward with legislation that would protect banks that service marijuana businesses from being penalized by federal regulators.
“With increasing use and a growing number of states giving the green light for marijuana use, we need better answers,” he said.
The surgeon general and the director of the National Institute on Drug Abuse, along with several academics, are scheduled to testify at Wednesday’s hearing.
Photo courtesy of C-SPAN.
Michael J. Fox Parkinson’s Foundation Urges Congress To Pass Three Marijuana Research Bills
A leading advocacy group that’s dedicated to finding treatment options for Parkinson’s disease is backing three pieces of marijuana research legislation in Congress.
The Michael J. Fox Foundation (MJFF)—named after the actor, who has Parkinson’s and established the nonprofit—said last week that lifting barriers to cannabis research, including rescheduling the plant under the Controlled Substances Act (CSA), is necessary to promote studies verifying marijuana’s potential therapeutic benefit for conditions such as Parkinson’s patients.
“The MJFF supports increased access to cannabis for medical research. Congress has begun to recognize this need, and there are several bills in the U.S. House and Senate designed to remove barriers that impede safe and legal access to cannabis by medical researchers,” the foundation said on its website. “The MJFF public policy team is tracking these bills and working to educate members of Congress and their staff on their importance to the Parkinson’s community.”
MJFF said it’s in favor of three marijuana bills, which would accomplish the following:
—Require the Justice Department to approve additional manufacturers for research-grade cannabis.
—Protect research institutions that conduct studies on marijuana.
—Authorize the U.S. Department of Veterans Affairs (VA) to inform patients about opportunities to participate in federally authorized cannabis studies.
—Require VA to conduct studies into the therapeutic potential of marijuana in the treatment of various conditions that commonly afflict veterans such as chronic pain and post-traumatic stress disorder.
—Reschedule marijuana from Schedule I to Schedule III under the CSA.
—Free up universities to conduct studies on cannabis by removing certain regulatory requirements.
In a letter to the Senate sponsor of that last piece of legislation, Sen. Dick Durbin (D-IL), in June, the foundation stated that marijuana’s current classification under federal law and the inadequate quality of cannabis grown at the only federally authorized manufacturing facility has meant that “researchers do not have the proper materials to conduct the necessary research.”
The foundation noted that it has submitted comments to the Food and Drug Administration arguing in favor of rescheduling in 2018 and 2019. It also applauded the Drug Enforcement Administration for announcing that it would take steps to approve additional federal cannabis farms for research.
“Current policies hinder comprehensive medical research on cannabis, making it difficult to generate the evidence needed for clear recommendations,” Andrew Koemeter-Cox, MJFF’s associate director of research programs, said. “This is especially problematic when some products may be unsafe for human use and have the potential for adverse interactions with other medications.”
Ted Thompson, the nonprofit’s senior vice president of public policy, said that removing barriers to research “is one way in which Congress can help scientific researchers determine what the benefits of medical cannabis might be for Parkinson’s disease.”
“Our role on the public policy team is to work with Congress and the administration to ensure there is access and funding for research and care initiatives that can benefit people living with Parkinson’s and, right now, that includes access to medical cannabis for research,” he said.
Photo courtesy of Brian Shamblen.