Texas House Approves Cannabis Oil Bill That Seems Unworkable

The bill, which could be signed by the governor soon, requires "prescriptions" instead of "recommendations."


Texas Senate

Today the Texas House of Representatives gave preliminary approval to a bill aimed at making low-THC, high-CBD cannabis oil available to patients with drug-resistant epilepsy. The bill was approved by the Texas Senate on May 7, so after one more vote in the House it will head to Gov. Gregg Abbott for his signature. Unfortunately, as the Marijuana Policy Project's Heather Fazio points out, it looks like "not a single patient will be helped by this legislation."

That's because S.B. 339, which was introduced by Sen. Kevin Eltife (R-Tyler), requires doctors to "prescribe" cannabis, which is forbidden by federal law, since the plant has not been approved as a medicine by the Food and Drug Administration. Other states with medical marijuana laws refer instead to patients whose doctors "recommend" cannabis, which does not run afoul of federal law and, according to a 9th Circuit decision that the Supreme Court declined to review, is protected as an exercise of physicians' First Amendment rights.

"Lawmakers missed several opportunities to amend the bill in ways that could have provided real relief to countless Texans," Fazio says. "We need a law that ensures seriously ill patients who could benefit from medical marijuana are able to access it." Unlike other states that have notionally legalized low-THC cannabis extracts, S.B. 339 envisions a state-licensed system in which nonprofit organizations would produce the medicine. But the language referring to marijuana prescriptions seems like a significant oversight, since it means doctors who participate in the system risk losing their prescribing privileges under the Controlled Substances Act.

"On a certain level, the legislature should be commended for acknowledging the medical value of marijuana, and it is an historic vote in that sense," Fazio says. "Nearly half of the states in the country have effectively implemented medical marijuana programs, and I have no doubt Texas could adopt an even better one." In addition to clarifying the role of doctors, MPP wants the legislature to let patients with "other debilitating conditions, such as PTSD, cancer, and multiple sclerosis," use cannabis.

The House vote today was 96 to 34. The bill passed the Senate by a similarly lopsided margin, with only five members voting no. Those tallies, like the recent legislative vote in Georgia, reflect the willingness of many conservatives to support medical access to nonpsychoactive cannabis preparations.

Texas legislators seem less inclined to support decriminalization of marijuana possession, let alone full-blown legalization. Bills that would have implemented those policies won committee approval in the House this month but have not been scheduled for floor votes.

Update: The cannabis extract bill got final approval from the House on Tuesday, so now Abbott will have to decide whether to sign it.

NEXT: New Jersey Considers Lifting Ban on Self-Service Gas Stations—Legislators Worried About Public Safety

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. Man those Muppets are entering the uncanny valley.

    1. Steve Carrel has really let himself go.

      1. That’s just him getting into character for Foxcatcher.

  2. Jacob, haven’t I explained to you already that it’s not illegal for a doc to prescribe cannabis. Common misconception, but I thought you knew better.

    There is no difference between a recommendation & a prescription. Unless there’s a statutory definition of the term in that jurisdiction, it makes no difference which word is used.

    1. Oh, and the MPP people are complete ignoramuses on this issue.

      What do you think “prescribe” means? It just means “instruct” or “advise” or “recommend”. It doesn’t matter who’s doing the prescribing, or what privileges the person doing it might have, or what the prescription says, its essential nature as advice does not change.

    2. You rant a lot, but I bet there’s quite a lot of legal precedent remarking on the specific definition of prescription. Legal words are very finicky beasts. Anyone who claims “prescribe” and “recommend” have the exact same legal meaning sounds to me like a sovereign citizen claiming a warrant with his name in all caps is someone else.

  3. If the state statute that the 9th US Cir, ruled on had used the word “prescribe” instead of “recommend”, the decision would’ve come out identical. Prescriptions are a matter of freedom of speech.

    This confusion comes up a lot. Several yrs. ago I phoned a few reform-minded types, including Jeff Schaller, Stanton Peele, a few others, asking them what they thought “prescription” meant. Only Thomas Szasz gave the correct answer. So you’re in good company on this, Jacob, just not the best.

    Judges looking at the issue know better than doctors. I remember the issue of prescription of cannabis or maybe some other proscribed substance coming up in a case some years ago, and the judge’s opinion did say that of course a doctor may prescribe it, a matter of freedom of speech, it’s just that a pharmacist couldn’t legally fill it.

  4. The US CSA (& similar state acts) & regs set forth criteria for a prescription to be “effective” for the dispensing of controlled substances. The law emphatically does not make it illegal to write a prescription which would be ineffective!

    It’s like the difference between a same-sex marriage being legally invalid, & being illegal. Even in football, a fair catch signal can be illegal (& invalid), or invalid w/o being illegal. Invalid just means no privilege attaches to it; it doesn’t mean there’s a penalty for it.

    1. I’m guessing that prescribing it would risk tripping one of the DEA red flags and getting your DEA # revoked. Are you sure that isn’t the case here?

      1. It makes no difference whether you call it a prescription or recommend’n. DEA could form the same opinion about you. But remember we already had that federal court opinion that said DEA couldn’t sanction a licensee solely on the basis of their communication of their opinion to a patient, which is what a prescription (or recommendation) is.

        1. In Conant v. Walters, the 9th Circuit says “the plaintiffs agreed with the government that a doctor who actually prescribes or dispenses marijuana violates federal law.” The court notes (and rejects) the government’s argument “that the ‘recommendation’ that the injunction may protect is analogous to a ‘prescription’ of a controlled substance, which federal law clearly bars.” So it seems to me that MPP has a point. Although the bill does not explicitly define the term, doctors might reasonably worry that if they “prescribe” marijuana they could be deemed to be doing something that “federal law clearly bars.”

          The 9th Circuit’s distinction between a protected “recommendation” and an illegal “prescription” hinges on the doctor’s intent: “If, in making the recommendation, the physician intends for the patient to use it as the means for obtaining marijuana, as a prescription is used as a means for a patient to obtain a controlled substance, then a physician would be guilty of aiding and abetting the violation of federal law.” That is what the prescriptions described by S.B. 339 sound like: They are written by doctors, who specify the form of cannabis, the appropriate dosage, and the total amount to be dispensed, and taken by patients to “dispensing organizations,” which “fill” the prescriptions.

          Conant v. Walters:…..43211.html

          S.B. 339:…..navpanes=0

          1. The judge writing that particular decision got it wrong by saying federal law clearly bars the prescription of a controlled substance contrary to the rules. Courts examining the same issue more closely see that the only thing the law bars is the filling of a prescription, i.e. “dispensing” contrary to the rules.

            What DEA wanted doctors to think was that expressing the wrong opinion about marijuana was contrary to public policy, hence grounds for sanction. It makes no difference whether that’s conveyed by something you call a recommend’n, scrip, etc. I suspect the judge above was doing something appeals judges commonly do in dicta, throwing the losing side a bone.

            The doctor in prescribing pot is not in conspiracy w the pharmacist or “dispensing organization” in violating the CSA. The physician doesn’t tell anyone to violate the law in filling a prescription. The physician is just stating an opinion, and allowing those vested with legal authority, whether by the state or federal gov’t, to proceed as their authority allows. If the patient can’t afford a prescribed drug or medical device, and steals to obtain it or the money to buy it, can the prescriber be blamed for the theft?

          2. A clue Is to be had in the abbr. “Rx”. It’s for “recipe”, meaning “take” (or receive). It is explicitly written to the patient. It is not an order to anyone else.

            1. You are arguing form the viewpoint of a layperson, but courts rule by legal niceties which you gloss over.

              Anyone who thinks those fine distinctions of legal terms should be fall to “common sense” is an utter fool.

              1. “‘an utter fool.'”

                There’s your problem.

            2. The other day, I was presented with a summons by my local constable. I noted, correctly, that he did not arrive mounted on a horse. As I’m sure you know, the word “constable” is derived from the Latin, “comes stabuli” — friend of the stable. Well, as he has no stable to administer, the constable lacked the proper authority to serve me with a summons. As you can imagine, he was pretty sheepish once I explained that to him. Time will tell whether he acquires a proper steed or if he decides to drop the matter.

              1. Damn, sir, you provide excellent knowledge with wit and wisdom.

  5. That’s the first real person I’ve ever seen with a face that makes him look like a real-life Chris Griffin. If they ever do a live-action movie, they’ve got to get him on the horn for a casting call.

  6. “other debilitating conditions, such as PTSD, cancer, and multiple sclerosis,”

    One of these things is not like the others.

    1. CANCER, and MS


      1. My buddy’s mother makes $75 every hour on the laptop . She has been laid off for seven months but last month her pay check was $18875 just working on the laptop for a few hours.
        Look At This. ????

  7. My best friend’s mother-in-law makes $85 /hour on the internet . She has been out of work for 5 months but last month her pay was $16453 just working on the internet for a few hours.
    Visit this website ?????

  8. Even if it’s unworkable, they will still be tapping into Texas general resentment of regulation and the feds … as fuel for next legislative session. So it’s still good.

  9. Nathaniel . although Stephanie `s rep0rt is super… I just bought a top of the range Mercedes sincee geting a check for $4416 this last four weeks and would you believe, ten/k last-month . no-doubt about it, this really is the best-job I’ve ever done . I actually started seven months/ago and almost straight away started making a nice over $79.. p/h….. ??????

Please to post comments

Comments are closed.