Texas Bans Sale of Vape Pens – Even When the Substance is Legal

 Posted on September 16, 2025 in Drug Crimes

Texas residents may be surprised – and confused – to learn that new legislation has decreed that even if the substance inside a vape pen is legal, the device used to consume it may not be. The state has created a confusing situation where consumers and retailers risk criminal penalties for selling vape pens, regardless of whether the liquid inside is legal. It is likely that this new law will spark legal challenges across the state as it targets the delivery mechanism rather than the actual substance.

Even though Texas law does not explicitly ban the possession of a THC vape pen, sellers of the pens can face up to a $4,000 fine and a year in jail. The measure banning vapes containing cannabinoids (including Delta-8) was tacked on to another bill in the state that prohibits e-cigarettes "disguised" as pens, highlighters, smartphones, or other products. Under Senate Bill 2024, those who sell or market a vape containing a cannabinoid – even when the substance inside remains legal - can face a Class A misdemeanor charge.

While those who support the bill claim the goal is to keep vape pens containing cannabis out of the hands of teens, opponents claim the measure deprives adults of safer ways of using cannabis. There is also the argument that criminalizing the sale of these vape pens will fuel a black market. THC users are lining up to stock up before the ban takes effect, as shops across the state begin clearing out their inventories. Many may find this new law confusing, since Texas law bans marijuana.

However, lawmakers did legalize hemp in 2019, defined as containing less than 0.3 percent Delta-9. Marijuana has more than 100 cannabinoids, which include Delta-8 and THCA. This legal "quirk" has resulted in a multi-billion-dollar Texas hemp industry, with over 9,000 businesses selling consumable hemp products.

Texas Senate Bill 6, which would have banned nearly all THC products in the state, did not pass the House, as reported on September 4, 2025. This means that, at least for the time being, most forms of consumable hemp-derived products will remain legal in Texas.

The separate law that made it illegal to sell – but not to possess – THC vape pens went into effect on September 1, 2025. Because these laws are so confusing, if you are charged with a criminal offense related to THC or vape pens, it is extremely important that you speak to an experienced Houston criminal law attorney from Murphy & McKinney Law Firm, P.C. as quickly as possible to ensure your rights and your future are protected.

Is Vaping Popular in Texas?

According to a 2025 report from DSHS, across the nation and in Texas, e-cigarettes and vape pens (which are essentially the same thing) have become the most commonly used tobacco product among youth and young adults since 2014. Tobacco companies have marketed these products as safer alternatives to smoking and as a tool to help people quit smoking, but that claim has not really been found to be accurate. As of 2023, about 17 percent of high school students and 10 percent of middle school students reported using vape pens.  

Criminalizing the Vape Pen Device, But Not All Substances

It seems curious that Texas lawmakers would make the device – the vape pen – illegal to sell, while the substances that go inside the vape pen remain legal. To be clear, not all substances that go inside a vape pen are legal. Marijuana remains illegal in the state, so if the substance inside a vape pen is a THC concentrate, rather than a hemp product or a substance containing less than 0.3 percent of Delta 9 THC, then a felony offense can be charged. Hemp products and Delta 9 remain legal.

Obviously, this leads to enforcement difficulties for police. It is impossible to determine in the field whether a vape pen contains an illegal substance. The substance must be sent to a state crime lab for official testing, a process that can take several months. It is also confusing that possession of a small amount of marijuana flower in the state is a misdemeanor, while possession of concentrated forms of THC is a felony.

Many believe this new law, making the sale of THC vape pens illegal, is simply a workaround because the House refused to criminalize hemp and Delta-9 products. It is important to note that not only was the sale of THC vape pens criminalized, but the sale of vape products that include alcohol, kava, kratom, or mushrooms was also prohibited.

Vapes with "youth-appealing" packaging, such as candy or cartoon characters, and vape pens designed to look like everyday objects were banned under the new law. Any vape products manufactured in "foreign adversary" countries, like China, were also banned. Some compare the new law to paraphernalia laws, which target bongs and pipes. Any way you look at it, the law is confusing for consumers and retailers.  

Current Criminal Penalties for the Possession and Sale of THC Concentrates and Marijuana

Possession of marijuana flower has the following penalties in Texas:

• Possession of two ounces or less is a misdemeanor with a maximum fine of $2,000 and up to 180 days in jail.
• Possession of two to four ounces is a misdemeanor with a maximum fine of $4,000 and up to one year in jail.
• Possession of four ounces to five pounds is a felony, with a maximum fine of $10,000 and from 180 days to two years in jail.

Possession of THC concentrate has the following penalties in Texas:

• Possession of less than one gram is a state jail felony, with a maximum fine of $10,000 and a sentence of between 180 days and two years in a state jail facility.
• Possession of one to four grams is a third-degree felony, punishable by a maximum fine of $10,000 and a prison term of between two and 10 years.
• Possession of four to 400 grams is a second-degree felony, punishable by a maximum fine of $10,000 and a prison term of two to 20 years.

The new law that bans the sale of vape pens with THC products (and certain other products) can result in up to one year in jail and a maximum fine of $4,000. One of the many problems associated with this new law lies in how the "seller" is determined. Is the store owner liable for selling the product, or is the minimum-wage clerk who sells the products that the owner stocks liable?

There will almost certainly be arguments regarding government overreach and constitutional concerns, as well as questions regarding whether the ban conflicts with state and federal hemp laws. There are also likely to be enforcement inconsistencies across counties and cities in the state. For the time being, the legality of the substance should not be assumed to imply the legality of the device. It is essential to check both state and local laws before purchasing or using vape pens.

Contact a Houston, TX Drug Crimes Attorney

If you have been charged in Texas with selling, possessing, or distributing vape pens or a substance that goes inside a vape pen, you need immediate legal guidance. The laws in Texas are complex and are changing rapidly. A conviction can carry lasting consequences, so consulting with a highly experienced Houston criminal defense lawyer from Murphy & McKinney Law Firm, P.C. is the best step you can take.

Attorney Murphy serves on the Board of Regents for the National College for DUI Defense and as President of the Harris County Criminal Lawyers Association. He is a nationally acclaimed Houston criminal defense attorney, Board Certified in criminal law by the Texas Board of Legal Specialization. To schedule your initial attorney consultation, call 713-229-8333.