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Texas Register Preamble


Comment: A commenter stated that language in proposed §300.402(a) is narrower than the language in the analogous section of the statute, Texas Health and Safety Code, §443.205(a). The result is that the proposed language might give the impression that only consumable hemp products containing CBD need to comply with the packaging and labeling requirements. This would conflict with the statute, which requires compliance from any consumable hemp product that contains or is marketed as containing "more than trace amounts of cannabinoids."

Response: DSHS agrees with the commenter and has revised §300.402(a) to be more consonant with the language in Texas Health and Safety Code, §443.205(a).

Comment: A commenter requested that proposed §300.402 be revised because the labeling requirements as written would affect the ability of companies to "white-label" (i.e. private label) consumable hemp products. The commenter stated that the rule may lead to a loss of competitive advantage as the label would require the "white label" product to reveal their source.

Response: DSHS disagrees with the commenter and declines to make the revision. Texas Health and Safety Code, §443.205(a)(5) requires the name of the manufacturer.

Comment: A commenter requested language in §300.402 requiring that consumable hemp product labels be prominently placed and highly visible. The same commenter requested language requiring warning labels for pregnant or breast-feeding women.

Response: The labeling requirements in the proposed rule follow the labeling requirements in Texas Health and Safety Code, §443.204. DSHS declines to revise the rule.

Comment: A commenter requested that DSHS include additional options for the disposal of an article that meets schedule I drug due to THC content.

Response: DSHS does not agree with the commenter and declines to revise the rule. DSHS will follow statutory guidance to work with the Texas Department of Public Safety for the disposition of consumable hemp products with confirmed THC content exceeding 0.3%.

Comment: A commenter requested a clarification regarding whether e-commerce is covered by this chapter as it is not addressed in the rules.

Response: The statute makes no distinction between brick-and-mortar commerce and e-commerce. Therefore, e-commerce, like brick-and-mortar, with a recipient in Texas is required to obtain a license or registration from DSHS and to comply with Texas Health and Safety Code, Chapter 443 as well as this chapter.

Comment: A commenter requested that DSHS consider adding a laboratory licensing or registration requirement to the proposed rules.

Response: DSHS disagrees with the commenter and declines to make the revision. Texas Health and Safety Code, Chapter 443 does not give DSHS authority to license or register laboratories to conduct testing of consumable hemp products.

Comment: A commenter requested more definitive and prescriptive testing standards and requirements, so they are clear to all laboratories, license holders, and registrants.

Response: DSHS disagrees with the commenter and declines to make the revision. The proposed testing requirements are designed to be minimum standards. Businesses may conduct more robust testing at their own discretion.

Comment: A commenter requested a revision of the fee structure for registrants with multiple locations. The commenter stated that the fees for large scale retailers would be exorbitant and recommended a tiered fee system for registrants with a significant number of locations.

Response: DSHS disagrees with the commenter and declines to make the revision. License or registration fees for each location is consistent with the method operated by other DSHS licensing programs.

Comment: A commenter expressed concern over Subchapter F in the proposed rules related to enforcement. The commenter stated that the penalty for acting in violation of the requirements are not clear and asked if any violations of the proposed rules would result in criminal enforcement action.

Response: DSHS does not agree with the commenter and declines to make the revision. DSHS will publish an administrative penalty matrix in the Texas Register in the future. All enforcement action taken by DSHS is administrative or civil rather than criminal.

Comment: One commenter opposed the registration requirements in §300.502 for out-of-state sellers.

Response: DSHS disagrees with the commenter and declines to revise the rule. The requirement is statutory. Texas Health and Safety Code, §443.2025(b) clearly states that the retail sale of consumable hemp products containing CBD in Texas requires a retail registration. The statute does not distinguish between in-state and out-of-state retailers.

Comment: A commenter noted that §300.602(1) appears to make it illegal for a consumable hemp product contained in a package to be in commerce.

Response: DSHS agrees with the commenter and revises §300.602(1) and (2) for greater clarity.

Comment: A commenter suggested that the notice of violation contained in §300.606(e) be by email as well as certified mail.

Response: The proposed language requiring the notice of violation to be sent by certified mail is consistent with current DSHS compliance procedures. DSHS declines to revise the rule.

A minor editorial change was made to §300.601(a)(1) to correct a reference title to §300.201.

STATUTORY AUTHORITY

The new rules are authorized by H.B. 1325 that added Texas Health and Safety Code, Chapter 443, which provides that the Executive Commissioner of HHSC may adopt rules for the efficient enforcement of Texas Health and Safety Code, Chapter 443; and Texas Government Code, §531.0055 and Texas Health and Safety Code, §1001.075, which provides that the Executive Commissioner of HHSC shall adopt rules for the operation and provision of health and human services by DSHS and for the administration of Texas Health and Safety Code, Chapter 1001.



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