Consumable Hemp Products - Frequently Asked Questions
How does the ruling of the Texas Supreme Court in Texas Department of State Health Services v. Crown Distributing LLC; America Juice Co., LLC; Custom Botanical Dispensary, LLC; 1937 Apothecary, LLC affect consumable hemp products for smoking?
The Texas Supreme Court ruling upheld the prohibition of the manufacturing and processing of consumable hemp products for smoking within Texas (including white labeling). However, retail sale and wholesale distribution of these products manufactured outside Texas is allowed. The products must be produced in accordance with the statutes and regulations of the state in which they were manufactured. In addition, the products must be tested and labeled in accordance with current DSHS regulations contained in 25 Texas Administrative Code, Chapter 300.
What happens if I white-label (private-label) consumable hemp products for smoking from out-of-state?
White labeling (also called private labeling) occurs when the name and address of a Texas firm (the white labeler) is on the label of the product instead of the name and address of the firm that actually manufactured the product. In this situation, the contact information of the white labeler is usually preceded by the words “manufactured for” or “distributed by.” In Texas statute, a white labeler is considered a manufacturer who takes responsibility “for the purity and proper labeling” of the product by placing its name and address on the label.
Because white labeling is manufacturing and, in the context of Consumable Hemp Products, requires a Consumable Hemp License (manufacturing), the white labeling of hemp products for smoking by Texas firms is not allowed. Texas statutes and regulations prohibit manufacturing or processing of consumable hemp products for smoking in Texas.
If I am currently manufacturing or processing consumable hemp products for smoking, how soon must I cease operations?
If you or your firm currently manufacture or process, consumable hemp products for smoking in Texas (including white labeling), you must cease this activity immediately. Effective March 1, 2023, firms that manufacture or process consumable hemp products for smoking in Texas, including white labeling, are subject to enforcement action by DSHS.
How does the court ruling affect licenses and registrations?
If you are going to sell consumable hemp products for smoking at retail (i.e., sell to end consumers), you must obtain a DSHS Retail Hemp Registration. If you are going to engage in wholesale distribution of consumable hemp products for smoking, you must obtain a DSHS Food Wholesaler License, a DSHS Warehouse Operator License, or a DSHS Food Wholesaler Registration.
Information about obtaining a Retail Hemp Registration can be found on the DSHS Consumable Hemp Program web page.
Information about obtaining a Food Wholesaler License, Warehouse Operator, or Food Wholesaler Registration can be found on the DSHS Food Wholesalers/Warehouses General Information web page.
Does the court ruling affect consumable hemp products that are not used for smoking?
No. The ruling only pertains to consumable hemp products for smoking.
Can I still sell hemp flower in bulk?
Yes, if it is not marketed or labeled for smoking. Packaging and labeling must meet all the requirements of 25 Texas Administrative Code §300.402 in addition to the requirements of 25 Texas Administrative Code §300.102.
What are the statutes and rules that pertain to smokable hemp?
Smokable hemp must follow the following statutes and regulations:
- Health and Safety Code, Chapter 443, Manufacture, Distribution, and Sale of Consumable Hemp Products
Is there an age requirement to buy consumable hemp products including smokable hemp?
No. There currently is no minimum age set by Texas statute to purchase consumable hemp products in Texas. This includes hemp products that are intended for smoking.
What about the prohibition against distribution and retail sales of consumable hemp for smoking products that is contained in 25 Texas Administrative Code, §300.104?
DSHS is currently amending the rule to reflect the Texas Supreme Court decision. DSHS is not engaging in enforcement activities for properly packaged, labeled, and tested consumable hemp products for smoking for distribution and retail sale by properly licensed distributors or properly registered retailers.
Which one is required: A DSHS Consumable Hemp Product License or DSHS Hemp Retail Registration?
A Consumable Hemp Product License is required to make any change to a consumable hemp product or its packaging and to sell it wholesale or retail. Any change can be repackaging hemp flower from bulk into smaller packages, relabeling a bottle of CBD oil, adding your own label to a package of CBD gummies, or adding CBD oil to cupcakes.
If consumable hemp products (CHPs) are only going be sold in retail and no changes will be made to the CHPs or its packaging, an applicant will need to complete the Texas Department of State Health Services (DSHS) Hemp Retail Registration.
If an applicant has one or multiple locations that do both activities, they will need to obtain the Consumable Hemp Product License. If a CHP is made at one location then sold at another, the applicant needs to obtain a Consumable Hemp Product License and complete the DSHS Hemp Retail Registration for the retail location.
What is DSHS required to do because of House Bill (HB) 1325?
HB 1325 requires DSHS to:
- Establish a manufacturing licensure program for CHPs.
- Create a registration process for retailers selling CHPs containing cannabidiol (CBD).
- Work with the Texas Department of Public Safety on random testing for CHPs containing CBD sold at retail.
What is DSHS’ role?
DSHS has oversight of food, drug, cosmetics and medical device manufacturers, distributors and retailers, including those that may use or market hemp or CBD as an ingredient in those products. Local jurisdictions can also regulate retail sales of food, drugs, cosmetics and medical devices, but cannot prohibit the sale of CHPs.
DSHS does not regulate a person’s private possession or private use of any food, drug, cosmetic product or dietary supplement. Neither does DSHS administer the Texas Compassionate Use Act.
Can CHPs be manufactured in Texas?
Yes. In accordance with HB 1325, Texas Health and Safety Code (HSC) Chapter 443, and HSC Chapter 431, Texas firms can manufacture CHPs such as food, drugs, cosmetics and devices containing “hemp or one or more hemp-derived cannabinoids, including cannabidiol.” The products must be properly tested, packaged and labeled per HSC 443 and 25 Texas Administrative Code 300. The firms must obtain the DSHS Consumable Hemp Product License before operation.
Products that contain hemp ingredients on the U.S. Food and Drug Administration’s Generally Recognized as Safe (GRAS) list - hulled hemp seeds, hemp seed protein, and hemp seed oil - are not considered CHPs in Texas. Manufacturers of such products must obtain the DSHS Food Manufacturer License.
What are the requirements to sell CHPs in retail?
To sell CHPs in Texas, retailers must complete the DSHS Hemp Retail Registration. Retailers must ensure the product is safe for consumption by being free of heavy metals, pesticides, harmful microorganisms, and residual solvents. Additionally, CHPs sold must not contain more than 0.3 percent of Delta-9 tetrahydrocannabinol (THC). Products that are being manufactured or handled in a manner that creates a health hazard for people who may use them can be detained.
During routine inspection or complaint investigations, DSHS, within its statutory authority, can detain products, including dietary supplements, that are labeled as or contain hemp, including CBD, and that make unproven health claims such as preventing, diagnosing, treating or curing a health or medical condition.
- Note: HB 1325 contains limitations regarding retail sales of out-of-state CHPs. The out-of-state CHPs must be processed or manufactured in compliance with one of the following:
- That state or jurisdiction’s plan approved by the United States Department of Agriculture (USDA).
- In absence of a state-submitted plan, a plan established by the USDA.
- The laws of that state or jurisdiction if the products are tested in compliance with, or similar to, those set out in Section 443.151 of HB 1325.
Where can GIS coordinates and the legal description of a property be found for the DSHS Consumable Hemp Product License process?
If the property is leased, the legal description may be in the lease agreement. If the property is owned, it may be in the deed.
Some people have found this information on their county property appraisal website.
DSHS will accept a screenshot or a clear photo of the legal description of the property for the DSHS Consumable Hemp Product License process. Another option is to write the information in a Word document with the information and website where the information was found.
These are some examples of the legal description of property:
- Lots 6, 7, and the South ½ of Lot 3, West 60 feet of South ½ of Lot 4, West 60 feet of Lot 5 and Lot 8, Block 20, OLD SURVEY, Leesville, Vernon Parish, Louisiana.
- Lot 1, Block 1, Minneapolis Addition, Hennepin County, Minnesota.
The GIS coordinates may be found where the legal description of the property is listed. There are apps that can find this information, including Google Maps. To get the GIS coordinates in Google Maps, type in the address and right click the red coordinate marker on the map to reveal the information.
This is an example of GIS coordinates:
- 1100 W. 49th St., Austin, TX 78756 — 30.320473, -97.734052.
What should a consumer know?
CBD is currently available as an FDA-approved prescription drug. DSHS does not regulate a person’s private possession or private use of any food, drug, cosmetic product, or medical device, and HB 1325 will not change those parameters. Questions regarding medicinal use of CHPs (including CBD) should be directed to a physician.
What is the process for a retailer to open additional locations selling CHPs?
The retailer will need to contact DSHS by calling 512-834-6626 or email the Hemp Licensing and Registration Program. They will need to provide the following:
- The registration or license number.
- The business name of the new location(s).
- The full address of the new location(s).
What is the process for a retailer to close locations selling CHPs?
The retailer will need to contact DSHS by emailing the Hemp Licensing and Registration program and providing:
- The registration or license number.
- The full address of the location(s).
- A brief statement that the location is closing and the date of closing.
Where can inquiries, comments and questions be sent about CHPs and farming hemp?
To learn more about CHPs, email the DSHS Hemp Program.
To learn more about the license for CHPs or retail registrations, email the Hemp Licensing and Registration program.
To learn about farming hemp, visit the Texas Department of Agriculture’s Hemp Regulations webpage or email the TDA Hemp Program.