Treating Epilepsy with CBD Oil
Galveston resident Trysten Pearson, who has epilepsy, experienced his first seizure in 2013 when he was 12 years old. But last summer, his mother Shena Pearson explained, his condition began to deteriorate quickly.
Despite taking a slew of medications, and despite having a device implanted under the skin of his chest that sends electrical impulses to his brain to reduce the number and severity of his seizures, Trysten’s symptoms persisted.
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He often felt nauseous and he’d vomit every few days. Because exercise triggered his seizures, his school stopped allowing him to participate in physical education, leading to weight gain. His grades were dropping and his memory was fading, too.
“Because of these horrific seizures, when I show him photos from when he was younger, his memory is completely lost,” Shena explained. “Sometimes, he looks at a photo from his past, and he just bawls. He says, ‘It’s unfair to me that my history is gone.’”
But this spring, Trysten’s luck finally turned, thanks to a treatment that has become available to him and thousands of other epilepsy patients across the state.
“My life has changed so much,” said Trysten, who turns 17 in July.
Teachers told Shena that Trysten was less distracted at school and that his performance had improved. In his first 30 days on his new treatment, he had just one seizure. He hasn’t felt this well for the past three years.
And it’s all thanks, the Pearsons say, to cannabis.
“I really wanted this medicine to work because of how many times pills have failed me,” said Trysten, who takes drops of the oil orally. “Once I started taking it, I felt so much better. I don’t have seizures.”
For the Pearsons, cannabis was a last resort to relieve Trysten’s epilepsy after years of other treatments failed to provide relief.
They were astounded by how quickly, and how well, the treatment worked.
Across Texas, doctors and patients are now finally able to take advantage of a three-year-old law that makes cannabidiol oil, or CBD oil, available to some epilepsy patients. CBD oil is derived from the cannabis plant, also known as marijuana. CBD oil provides symptom relief without intoxicating effects.
A different substance in the plant, tetrahydrocannabinol, or THC, is responsible for the high associated with cannabis.
In June 2015, Gov. Greg Abbott signed into law the Texas Compassionate Use Act after it passed both chambers of the state legislature by wide, bipartisan margins. But it wasn’t until late 2017 that the state issued full licenses to the only three businesses in Texas that can now legally provide CBD oil to prescribed patients.
Meanwhile, doctors have been slow to sign up for the program as they navigate the new law. As of late June, just 42 physicians across Texas were registered with the state to become CBD oil prescribers, including 12 in Harris County, though not all are prescribing CBD oil at this point. According to the Epilepsy Foundation of Texas, approximately 149,000 Texans have been diagnosed with the form of epilepsy that would make them eligible for the program.
For many who have used CBD oil, the newly available treatment has provided relief when all else failed. About two thirds of epilepsy patients will respond to the first or second medicine they’re given for epilepsy. But once an epilepsy patient has taken two different medicines without relief, the odds that a third medication will work are less than 1 percent, doctors say. That leaves other options, such as special diets, surgeries, device implementation—or CBD oil.
“This can be really beneficial to patients,” said Michael Watkins, M.D., assistant professor of pediatric neurology with McGovern Medical School at The University of Texas Health Science Center at Houston (UTHealth). Watkins works at the Pediatric Epilepsy Clinic at UTHealth, where about 20 patients have been prescribed CBD oil. He said the stigma associated with taking medicine derived from cannabis is fading.
“Most people are looking for anything beneficial to prevent their kids from having seizures,” Watkins said.
Doctors, patients and advocates are quick to point out CBD oil isn’t a miracle cure. It doesn’t eradicate epilepsy and it doesn’t help everyone. But for some patients, it can help eliminate or reduce their symptoms, and it may allow them to ease off of other drugs that have serious side effects, including anemia, low platelet levels, liver failure, pancreatitis, allergic reactions and suicidal tendencies.
Before the Texas law took effect, many patients were trying CBD oil on their own by visiting other states or ordering it online, which is a legal gray area. The problem with that, doctors say, is it’s difficult to determine the precise potency of the drug the patient is receiving.
“It’s kind of risky, but these parents and families are desperate for their kids,” said Gretchen Von Allmen, M.D., chief of pediatric epilepsy with McGovern Medical School at UTHealth and a pediatric neurologist at Memorial Hermann-TMC.
Under the state’s compassionate use law, patients’ medicine must contain at least 10 percent CBD oil and no more than 0.5 percent THC. For context, recreational marijuana might measure 20 percent THC. Those restrictions ensure Texas CBD oil makers maximize the compounds that provide symptom relief while minimizing those that can cause side effects or a high (Trysten Pearson, for his part, said he experiences no side effects from CBD oil).
Still, Texas’s CBD law is considered “pretty restrictive” compared to those involving cannabis in other states, said Katharine Neill Harris, Ph.D., a drug policy fellow at Rice University’s Baker Institute for Public Policy.
Texas patients must get two doctors to approve their use of CBD oil. And they are only eligible for a prescription if they have what’s called “intractable” epilepsy—meaning at least two other medications have failed to help them. Harris said she wouldn’t even call Texas’ policy a “medical marijuana” law.
Perhaps the biggest hurdle of all is price. The Pearsons pay $350 per month for Trysten’s CBD oil—a typical amount—and the cost isn’t covered by insurance. That’s unlikely to change, experts say, as long as the federal government views cannabis as a Schedule I drug with no accepted medical use. In May, a federal appeals court sided with the Drug Enforcement Administration, ruling that CBD oil is a Schedule I controlled substance. But in June, the U.S. Food and Drug Administration approved Epidiolex, a CBD oral solution to treat seizures associated with rare and severe forms of epilepsy.
Morris Denton, CEO of Compassionate Cultivation, which provides the CBD oil used by the Pearson family, has launched a discount program with the Epilepsy Foundation Texas to help subsidize CBD oil costs for low-income Texans. So far, the program has served 12 of its approximate 300 customers.
Meanwhile, the Texas law doesn’t permit people with any diagnosis besides intractable epilepsy to use CBD oil, even though some other states allow those with multiple sclerosis, late-stage cancer, Crohn’s disease and other conditions to access CBD oil or medical marijuana. That has frustrated some patients and advocates, but skeptics say more research must be done to evaluate whether and how CBD oil can treat those illnesses.
“Now that the people of Texas are seeing the real impact of this medicine, not just the potential impact, we need to figure out how to get it into other people’s hands that are as deserving as people with intractable epilepsy,” Denton said. “That’s up to the legislature to figure out how to make that happen.”
Is CBD Oil Legal in Texas? | Prosecution Depends on Location (2020)
People think since you can purchase CBD at almost any corner store in Texas, that it must be legal. Even elected district attorneys have different opinions about the legality of CBD oil in Texas. In this article we’re going to take a look at the circumstances under which CBD oil is legal and the arguments some prosecutors are making to charge individuals who possess CBD oil in Texas.
The cannabis plant contains over 100 cannabinoids. THC and CBD are the two most commonly discussed cannabinoids. Legislators at both the state and federal level have started recognizing the therapeutic value of CBD and CBD oils, although the legal landscape surrounding CBD oils is far from straightforward for Texans who want use it. Some of the confusion surrounding CBD stems from recent legalization at the federal level and very limited legalization in Texas.
Texas Governor Signs Law Legalizing Hemp Production, CBD
On June 10, 2019, Governor Greg Abbot signed a new law making CBD legal in Texas as long as it contains .3 percent or less THC. The law, which was House Bill 1325, went into effect on September 1, 2019, enacted the following:
- Defined hemp under the Agriculture Code as the cannabis plant and all derivates, extracts, cannabinoid, isomers, etc. that has no more that 0.3 percent THC on a dry weight basis.
- Required a memo of understanding between the Department of Agriculture and Department of State Health Services requiring DSHS to cooperate with the Department of Agriculture in developing a hemp production plan.
- Amended the Health and Safety Code to specifically exclude hemp from being a controlled substance. It also specifically exclude THC found in hemp.
- Excluded hemp from the definition of marijuana.
Will You Be Prosecuted for Possession of CBD Oil?
Whether you will be prosecuted for possession of CBD oil in Texas depends entirely upon where you are located. In North Texas, Denton County is not prosecuting CBD oil only cases, Dallas County is “not aggressively prosecuting” CBD oil cases, and the Collin County District Attorney is still deciding. Tarrant County, on the other hand, is prosecuting CBD oil cases. As we will discuss later, officials can chose to prosecute CBD oil that contains THC for Possession of a Penalty Group 2 Substance in Texas. While all elected prosecutors understand that theory of prosecution, the reality is that CBD oils usually contain less than .3 percent of THC, if they contain any at all.
Tarrant County’s position has been to prosecute cases with THC. Additionally, the First Assistant District Attorney recently stated to a local news organization that Tarrant County will prosecute possession of CBD oil not containing THC as a misdemeanor offense. (More on this later.)
Where is CBD Oil Legal in Texas?
CBD Oil is legal everywhere, as long as it falls under the .3 percent threshold.
Is CBD Oil Illegal Federally?
CBD is no longer illegal under federal law. On January 1, 2019 – with the passage of the Agricultural Improvement Act of 2018 (also known as the Farm Bill Act) – it became legal to grow or possess hemp under federal law as long as it has less than .3 percent THC.
CBD oil is a derivative of the hemp plant, therefore making it legal under federal law as long as it has less than .3 percent THC.
It’s important to point out that cannabis products (hemp-derived or otherwise) marketed with a claim of therapeutic benefit must be approved by the FDA. (Source: FDA)
CBD Prosecution Texas
Prosecutors in some jurisdictions, like Tarrant County, will have CBD tested for the presence of THC. If there is any detectable amount of THC, they are filing these cases as Possession of a Controlled Substance – Penalty Group 2 under Texas Health and Safety Code 481.103 and 481.116.
Like marijuana, prosecution based on possession of CBD products in Texas is largely a function of where you are, not what you possess.
We made an open records request to the Tarrant County District Attorney asking for the number of CBD oil cases that were prosecuted by her office.
While we continue to analyze those numbers, we did obtain information from the Office of Court Administrations that shows the effect an elected District Attorney can have on the cases pursued by the office.
For example, prosecution of misdemeanor marijuana cases in Tarrant County has increased seven times the state average since the beginning of the current district attorney’s administration, exceeding even more conservative neighboring jurisdictions. Not to mention, both the Republican governor and the Texas Republican platform support decriminalization of marijuana.
CBD Oil as a Misdemeanor
The Texas Controlled Substances Act is codified under Texas Health and Safety Code Chapter 481. Health and Safety Code Section 481.032 says that the Commissioner of State Health Services is to set out what substances are deemed Controlled Substances in Texas under Schedules I through V. Chapter 481.034 retains the right for the legislature to remove substances from the Controlled Substance list. In May of 2017, the Texas Commissioner of the Department of State Health Services, Dr. John Hellerstedt, ordered “that the substance Marijuana Extract, meaning an extract containing on or more cannabinoids that has been derived from any plant of the genus Cannabis, other than the separated resin (whether crude or purified) obtained from the plant) into Schedule I.Health and Safety Code Section 481.119(b) makes possession of a “controlled substance listed in a schedule by an action of the commissioner…but not listed in a penalty group” a Class B misdemeanor offense.
Theories for CBD Prosecution in Texas
Possession of CBD Oil is specifically distinguished from the possession of marijuana in Texas. Texas Health and Safety Code Section 481.002 excludes oils and resins from the definition of marijuana.
If you go through Chapter 481 of the Health and Safety Code, you will find substances like THC (Tetrahydrocannabinol) and dronabinol (synthetic marijuana). What you won’t find in Chapter 481 is “cannabidol.” You also won’t find any of the other descriptors of cannabidol found on the Open Chemistry Database maintained by the National Center for Biotechnology Information or in any penalty group in Texas.
As of May 2017, however, you will find the addition of “Marihuana Extract” in the Texas Register [PDF] (not the Health and Safety Code) by the order [PDF] of the Commissioner of the Department of State Health Services. That order is what the Tarrant County District Attorney is using as a basis to prosecute CBD oil possession cases at the misdemeanor level.
Prosecution of CBD Oil in Tarrant County
An NBC 5 investigation first brought the prosecution of CBD oil in Tarrant County to light. In an interview with NBC 5, the Tarrant County First Assistant District Attorney said Tarrant County is “going to enforce the law.” When he says that any amount of CBD oil is illegal – and a misdemeanor offense if it does not contain THC – the law he is referring to is not one passed by Texas legislators. Texas legislators have not specifically made cannibidiol a controlled substance. A medical doctor, who serves as the DSHS Commissioner, added cannibidiol to the list of controlled substances.
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After the NBC5 investigation broke and the interview aired, the elected District Attorney released a statement that she has “not spent and do[es] not expect to spend significant resources on cases involving CBD oil.”
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We are unaware of any other district attorney in Texas that is prosecuting misdemeanor CBD oil under this theory. According to the NBC 5 investigation, no other county in North Texas is prosecuting CBD oil possession as aggressively as Tarrant County.
Have Recent Amendments Made CBD Oil Legal?
Effective April 5, 2019, Dr. Hellerstedt amended the listing for marijuana and THC to fall in line with the federal Farm Bill Act. [PDF]
The changes are as follows: First, “[t]he term marihuana does not include hemp as defined in section 297 A( I) of the Agricultural Marketing Act of l 946.” Second, THC no longer includes THC contained in “hemp (as defined under section 297A( I) of the Agricultural Marketing Act of 1946)”However, “marijuana extract” still means “an extract containing one or more cannabinoids that has been derived from any plant of the genus Cannabis other than the separated resin (whether crude or purified) obtained from the plant.”As a result, the April 5, 2019 amendment only added more confusion for citizens, law enforcement agents, and prosecutors across the state. Additionally, this amendment is not going to keep Tarrant County from continuing to file charges.
Felony Prosecution of CBD Oil in Tarrant County
In Tarrant County, if the CBD contains THC, the case is the filed as a felony as a Penalty Group 2 illegal substance. This penalty group is generally reserved for hallucinogens, their salts, isomers, and salts of isomers.
What most people don’t realize is the person charged with Possession of a Penalty Group 2 substance is charged with the entire weight of the substance, including “adulterants or dilutants.” In other words, a small eye dropper bottle of CBD oil with half an ounce of liquid could contain a second-degree felony amount of drugs. That means the person is facing 2 to 20 years in prison and up to a $10,000.
Individuals possessing CBD oil, which is sold and marketed as being free of any psychoactive ingredients, are being punished as though it were equivalent to PCP, MDMA, or Ecstasy, or other hallucinogenic Penalty Group 2 substances.
What is CBD Oil?
CBD is short for Cannabidiol. Like THC, it is one of 85 cannabinoids present in the cannabis plant. CBD Oil contains high levels of CBD and trace amounts of THC. The lack of high levels of THC makes CBD Oils non-psychoactive.
What is THC?
THC is short for Tetrahydrocannabinol. This is one of many chemical compounds found in cannabis. THC is responsible for the psychological and euphoric effects of the drug. In other words, it is what makes people feel “high” when they smoke or ingest marijuana.
How is CBD Different From THC?
The short answer is, unlike THC, CBD is not psychotropic. Consequently, it doesn’t result in a euphoric high the way THC does.
The longer answer is far more interesting. It is important to first distinguish marijuana from hemp. Scientifically, both marijuana and hemp come from the “cannabis sativa” plant, according to the USDA. Marijuana, though in the same scientific family as hemp, is a much smaller plant. Hemp, the taller and more fibrous version of the sativa plant has a long history in the United States. In fact, George Washington grew hemp on Mount Vernon.
Over years of breeding, the cannabis plant was developed to have high levels of THC. It is this breeding to elevate THC levels that has spurred the illegal marijuana market. Because CBD comes from an entirely different plant than marijuana, its chemical properties are different.
THC is found in large quantities in cannabis, or what most people think of as the marijuana plant. Unlike cannabis, or marijuana, hemp contains low concentrations of THC. CBD Oils are generally made from the hemp plant so they contain high levels of CBD and trace levels of THC. As a result, CBD provides a less controversial alternative to THC for health benefits.
What is the Compassionate Use Act?
In 2015, Governor Greg Abbott signed into law what’s known as the Texas Compassionate Use Act, which allows the use of CBD oils to treat seizures caused by intractable epilepsy. The Act legalizes oils containing CBD for treatment of epilepsy, as well as other chronic medical conditions for those who have not responded positively to use of federally approved medications.
The Act authorizes the Department of Public Safety to license dispensing organizations, which function similar to compounding pharmacies. Only neurologists and epileptologists are able to offer prescriptions for CBD oil. While the law was implemented in 2015, access to CBD was delayed until 2017 to allow for additional time to create a system to ensure that distribution is confined to genuine medical necessity along with a detailed registry identifying doctors and dispensaries.
Selling CBD Oils without FDA Approval
Under current federal law, unapproved sellers of CBD Oils who describe the medical benefits of CBD Oils should at the very least expect to get a Cease and Desist letter from the FDA with language along the lines of:
Your product is not generally recognized as safe and effective for the referenced uses and, therefore, the product is a “new drug” under section 201(p) of the Act [21 U.S.C. § 321(p)]. New drugs may not be legally introduced or delivered for introduction into interstate commerce without prior approval from the FDA, as described in section 505(a) of the Act [21 U.S.C. § 355(a)]; see also section 301(d) of the Act [21 U.S.C. § 331(d)]. FDA approves a new drug on the basis of scientific data submitted by a drug sponsor to demonstrate that the drug is safe and effective.
Furthermore, your product is offered for conditions that are not amenable to self-diagnosis and treatment by individuals who are not medical practitioners; therefore, adequate directions for use cannot be written so that a layperson can use this drug safely for its intended purposes. Thus, ______ is misbranded within the meaning of section 502(f)(1) of the Act, in that its labeling fails to bear adequate directions for use [21 U.S.C. § 352(f)(1)]. The introduction of a misbranded drug into interstate commerce is a violation of section 301(a) of the Act [21 U.S.C. § 331(a)].
What Can CBD Oil be Prescribed for in Texas?
Studies show CBD oil has promise in the following areas: anxiety relief, anti-seizure, and pain relief.
However, in Texas, the only approved treatment at this time or the reduction or elimination of seizures. Notably, Florida passed a similar law in 2014, but in 2016, voters amended the law to allow for full THC forms of cannabis for those suffering from a broader variety of medical conditions, such as PTSD, MS, cancer, and HIV. Texas does not allow CBD oil for Parkinson’s patients.
In May of 2017, the Texas Department of Public Safety awarded licenses to produce, process, and dispense CBD oil to three companies. These companies, Cansortium Texas, Compassionate Cultivation, and Surterra Texas, each pay a licensing fee in order to operate facilities to produce and dispense CBD oils under the Compassionate Use Act.
Are THC Oils and Waxes Legal in Texas?
No. As of August 2017, possessing THC oil is not only a crime but also considered a more serious crime than possessing marijuana in its traditional form. In Texas, it is a felony to possess THC oil or wax. The seriousness of the felony varies based on the amount of THC oil possessed. For example, possession of less than one gram of THC oil is a state jail felony that is punishable by six months to two years in a state jail facility and a fine of up to $10,000.
Possessing one to four grams of THC oil is a third-degree felony, punishable by 2 to 10 years in prison and a fine of up to $10,000.
Possession of four to 400 grams of THC oil or wax is a second-degree felony. In Texas, a second-degree felony is punishable by 2 to 20 years in prison and a fine of up to $10,000.
Finally, possession of more than 400 grams of THC oil or THC wax is classified as a first-degree felony. This is the most serious felony for which someone can be charged for possessing THC oil or wax. This crime is punishable by 5 to 99 years in prison and up to a $10,000 fine.
Changes in Texas Law
House Bill 2107 was brought during the 2017 legislative session with a number of vocal supporters. The bill sought to remove the “low THC” restriction and amend the law to allow for “medicinal marijuana.” It also sought to expand the types of conditions that can be treated with cannabis by including post-traumatic stress disorder and terminal cancer. Finally, the bill sought to modify the language, from requiring a doctor’s prescription to requiring a doctor’s recommendation. This change intended to address concerns about the legality of physicians prescribing something prohibited by federal law. Despite having 77 sponsors and co-sponsors, 29 of whom were Republican, the bill died in committee. Given strong support, as well as national trends, changes in Texas law are likely to occur in the future.
The complicated nature of the laws governing CBD oils makes the possession of CBD oil very defensible, especially if the CDB oil has no detectable amount of THC. If you have been arrested for an offense arising from the possession of CBD oil in North Texas, contact us at (817) 203-2220. You can also contact us online.
Cannabidiol Part II: Frequently Asked Questions about CBD Oil
Here are the most commonly asked questions about CBD Oil.
1. Who can be prescribed CBD Oil in Texas?
According to the Compassionate Use Act, people living in Texas with intractable epilepsy – meaning a person has tried at least two different seizure medications and continues to have epileptic seizures can be prescribed CBD Oil. There is no age limit. If a patient has a vagal nerve stimulator, other nerve stimulator or has had epilepsy surgery, they can still be prescribed CBD Oil.
2. Who can prescribe the CBD Oil?
Only an epileptologist (seizure specialist) practicing in Texas who is on the Compassionate Use Act registry can prescribe CBD Oil. A list of doctors on the registry is here.
3. How do I get CBD Oil?
Three dispensaries in Texas can dispense CBD Oil. They are Compassionate Cultivation near Austin, Tx, Cansortium Texas in Schulenberg, TX and Surterra Wellness. You can pick up CBD Oil at the dispensary or it can be delivered to you for a fee.
4. How much does it cost?
According to the Compassionate Cultivation website, a 7.5ml bottle is $100 and a 15ml bottle is $200.
5. Does insurance over the CBD Oil?
No. CBD Oil is not approved by the FDA and is therefore not covered by insurance companies.
6. How do I take the CBD Oil?
The current form of CBD Oil is a liquid that you put under your tongue.
7. Will I feel a “high” from CBD Oil like you can have with recreational marijuana?
THC is the chemical in recreational marijuana that gives people a “high” sensation. The law allows for no more than 0.5% of THC in CBD Oil produced in Texas. Therefore, there will be no “high” sensation.
8. If I am prescribed CBD Oil under the guidelines of the Compassionate Use Act, will there be protections against criminal prosecution?
According to the Texas Department of Public Safety, “Texas Health and Safety Code 481.111(e)1 provides exemptions from state law prohibiting possession of marijuana for patients (and their legal guardians) for whom low-THC cannabis is prescribed under a valid prescription from a dispensing organization.”
9. Do I have to see a second physician who is on the Compassionate Use Registry before I get the CBD Oil?
A second epileptologist will review your medical information to determine if they agree with your doctor. However, you do not have to see the second epileptologist in person.
10. Will I become seizure free or stop my other seizure medications if I start CBD Oil?
From the research done and outlined here, CBD Oil likely will work about as well as an anti-seizure medication. It is not a cure for epilepsy. CBD Oil will be adjunctive therapy, meaning people will take it along with their seizure medications.
11. Will Dr. Jetter prescribe me CBD Oil?
Dr. Jetter is currently accepting new patients with epilepsy by referral only. If you are interested in trying CBD Oil, please notify the office and have a referral sent by your current neurologist or primary care provider. You will be required to attend a short information session about CBD Oil before your appointment. After the session, you will meet privately with Dr. Jetter to determine whether CBD Oil is a good option for you. An appointment with Dr. Jetter is not a guarantee that you will be prescribed CBD Oil.
Dr. Jetter is holding the first batch of CBD Oil from Compassionate Cultivation.