Texas Supreme Court is suing smokable hemp ban |

The Texas Supreme Court has agreed to hear a case contesting the state’s ban on smokable hemp and has scheduled oral hearings early next year.

After hemp was legalized at the federal level through the 2018 Farm Bill, Texas state lawmakers passed law the following year banning the manufacture of smokable hemp products. Smokable forms of hemp, often rich in CBD and other cannabinoids, have become popular with consumers, especially in states with no other forms of legal cannabis.

In 2020, four hemp companies filed lawsuits in the Travis County District Court against the Texas Department of State Health Services (DSHS), the state agency responsible for regulating consumer hemp, and its Commissioner John Hellerstedt. Judge Lora Livingston of the 261st District Court ruled the smoking hemp ban is unconstitutional and issued an injunction preventing the DSHS from enforcing its regulations.

“Based on the entire file in this case, the court concludes that Section 443.204 (4) of the Texas Health and Safety Code is not rationally related to a legitimate state interest,” wrote Livingston in her final judgment.

“Also, based on the entire file in this case, the real effects of the Texas Health and Safety Code Section 443.204 (4) are so onerous as to be oppressive to legitimate government interests,” Livingston continued in her ruling.

Zachary Maxwell, president of Texas Hemp Growers, applauded Livingston’s verdict after the judge lifted the ban.

“Today’s ruling is a huge win for the Texas hemp industry and could set a new standard in similar cases across the country,” Maxwell said in a press release at the time. “The attorneys for the Texas Hemp Legal Defense Fund fought hard, brought fact-based arguments to court, and demonstrated the undeniable financial damage caused by this peculiar ban.”

Health department files an injunction against prohibition

On December 3, the DSHS appealed the judge’s judgment to the Texas Supreme Court, claiming that the Supreme Court had jurisdiction over the civil process. On December 17, the Supreme Court agreed to hear the case and scheduled the arguments for March 22, 2022.

The plaintiffs in the lawsuit against DSHS, four hemp companies primarily run by Crown Distributing, argue that the ban on smokable hemp is unconstitutional, saying that “the regulation at issue excludes hemp companies from producing and processing a legal good”. They also argue that the DSHS has overinterpreted the law by banning the sale of smokable hemp, pointing out that the regulations only prohibit the “processing or manufacture” of such products.

“In June 2019, Governor Abbott signed law establishing a hemp program for Texas. Among other things, it instructs the Executive Commissioner of the DSHS to ban “the processing or manufacture of a consumable hemp product”. However, the DSHS rule, adopted later in 2020, went much further: the rule prohibits the ‘manufacture, processing, distribution or retail sale of consumable hemp products for smoking,’ “the companies wrote in court records.

After the smoking ban went into effect in 2020, Sam Alvez, the manager of 7th Heaven Smoke Shop in Killeen, Texas, told local media that its customers are using smokable hemp therapeutically.

“Our customers always tell us how much CBD is changing their lives,” Alvez said. “You sleep better; their knees don’t hurt – they take away medicine, they do that. “

With the ban, a considerable part of his income was put at risk.

“This will likely reduce our business by 50 percent – we’re dealing with a good 50 percent. Personally, I don’t think they know what they’re doing, ”with reference to the Texan legislature. “They legalized it, but now they’re taking it back. I don’t understand this part. “