The Texas Supreme Court prohibits the production and sale of smokeable hemp

Hemp was classified as an agricultural product when the Farm Bill was passed in 2018, but the Texas Supreme Court banned smokable hemp in 2019. This was challenged and overturned by Travis County District Court in August 2021, declaring it unconstitutional to ban smokable hemp, and in December 2021 the Texas Supreme Court agreed to hear the case.

In March 2022, the Supreme Court case was heard involving the Texas Department of State Health Services (and its commissioner, John Hellerstedt) and four smokable hemp companies (Crown Distributing, America Juice Co., Custom Botanical Dispensary, and 1937 Apothecary).

On June 24, Texas Supreme Court Justice Jeffrey S. Boyd wrote in his opinion that smokable hemp is still prohibited. “Given the long history of extensive state efforts to ban and regulate the production, possession, and use of the Cannabis sativa L. plant, we conclude that the manufacture and processing of smokable hemp products is not a liberty interest or a proprietary interest is the due course clause protects,” Boyd wrote.

The Texas Constitution mentions the right to “purchase all the ordinary pursuits of life” and “to pursue a lawful calling, business, or occupation,” but Boyd believes that these rights do not apply to hemp production. “Suffice it to say that the due course clause, like its federal counterpart, has never been construed to protect a right to work in areas that our society has long viewed as ‘inherently malicious and harmful.’ .”

Dallas-based hemp company Wild Hemp was the main funding behind this effort, but the lawsuit is over. The company’s CEO, Zain Meghani, spoke to the Dallas Observer about the ruling and how it will affect local hemp businesses.

“This ruling damages the Texas hemp industry from head to toe,” Meghani said.

Chelsie Spencer, founding member of Ritter Spencer PLLC in Addison, Texas, represented the hemp companies. “The Texas Supreme Court has determined that the Texas Constitution fails to protect the interest in economic freedom of producers and processors of smokable hemp in the state of Texas,” Spencer said. “We are deeply disappointed by this decision and discouraged by the continuing stigma surrounding cannabis. It is instructive when the court insinuates that cannabis is ‘inherently malignant and harmful’.”

What’s more, the effort has been thwarted and, according to Spencer, Wild Hemp is unwilling to spend more money to fight it. “They fully funded this case and are now being kicked out of their home state.”

According to Spencer, the state loses with this decision to uphold a ban on smokable hemp. “I would expect increased consumer costs for Texas products simply because the state kicked them out this morning and now they all have to move,” Spencer told the Dallas Observer. “Most tellingly, our economist found that by 2024 the state will lose $1 million in tax revenue from Wilde Hempetten alone if it kicks them out.”

Wild Hemp sells a wide range of hemp goods such as hemp wraps, CBD cigarillos, tinctures, topicals, paper cones and of course their Hempettes CBD cigarettes. Each pack of cigarettes can contain up to 1,500 mg of CBD and comes in four flavors: Natural, Menthol, Pineapple Blaze, and Sweet.

Smokable hemp will still be banned for sale and production, but there are other cannabis-related efforts in Texas that could lead to consumer decriminalization. But there are still opposing factions against legalizing recreational activities, including the Texas State Republican Party, which has recently issued numerous planks, or stances, on cannabis and hemp. The party advocated decriminalization in 2018, but positions announced at the 2022 Texas State Republican Convention support the classification of cannabis as a Schedule II substance, but also state that recreational marijuana should remain illegal.