Texas' ban on smokable hemp is back in effect

Texas' ban on smokable hemp is back in effect

The issue of whether smokable hemp should be legal in Texas has arrived at the doors of the Texas Supreme Court. (Not to be confused with the issue of delta-8 THC in Texas, which is also under scrutiny. As of this writing, delta-8 is legal across the state.)

In an ongoing court battle, the Texas Department of State Health Services filed a notice of appeal Dec. 1 asking the Texas Supreme Court to uphold its ban on smokable hemp, which includes hemp flower and CBD vapes.

The appeal overrides an August 23 ruling that smokable hemp could be legally grown and sold in Texas, reports Jacob Vaughn for the Dallas Observer.

This issue has been in contention since August 2020, when the state health department decided to restrict sales and distribution of smokable hemp.

Timeline: Texas and smokable hemp

2018 — U.S. legalizes hemp at federal level with the 2018 Farm Bill.

2019 — Texas legalizes hemp, but specifically prohibits the processing and manufacture of smokable hemp.

2020 — Texas Department of State Health Services makes the call (based on its interpretation of the 2019 legislation) to restrict distribution and sales of smokable hemp, effective August 2020.

2020 — Four Texas companies challenge the ban, asking the court to declare the restrictions unconstitutional and to allow manufacture and sale of smokable hemp products.

September 2020 - August 2021 — As the lawsuit makes its way through the court of appeals, production and sales of smokable hemp are allowed throughout the state.

2021 — August 5, an appeals panel rules that Texans can legally buy smokable hemp products. However, the panel of justices uphold the ban on growing and processing hemp that’s intended for smoking or vaping. So people could buy it legally but it couldn’t be made in the state.

2021 — August 23, a judge in state district court rules that the ban on production and sale of smokable hemp is unconstitutional.

2021 — December 1, Texas Department of State Health Services files notice of appeal with the Texas Supreme Court.

What happens next?

With selling and growing smokable hemp illegal (at least for now), some stores may simply sell the products as “consumable” instead of “smokable,” cannabis advocate Jesse Williams told the Observer.

Chelsie Spencer, a lawyer representing the cannabis companies in their fight to keep smokable hemp legal, told the Observer it was “more than a labeling issue."

“The statutory ban bans manufacture and processing of smokable hemp here in Texas,” Spencer said. “We have multimillion dollar manufacturers here that will be forced to move out of state.”

“We have multimillion dollar manufacturers here that will be forced to move out of state.”

Chelsie Spencer, an attorney representing hemp companies fighting the ban

There’s a chance the Texas Supreme Court won’t accept the appeal, in which case it would be handed to a lower court. But Spencer told the Observer she expects the court to accept the appeal.

Once accepted, the question becomes: What will the court decide?

Zachary Maxwell, president of the industry association Texas Hemp Growers, was optimistic that the court would side with the hemp industry.

"The smokable hemp ban poses a serious financial risk for farmers, processors, manufacturers and retailers," Maxwell told the Observer. "Texas Hemp Growers is confident the Supreme Court will recognize the smokable hemp ban as a clear case of bureaucratic overreach.”

According to the Observer, the state’s health department has argued that allowing smokable hemp products in the retail marketplace makes it harder for police to find “real weed,” cannabis with more than 0.3% delta-9 THC.

But Matt Zorn, an attorney representing some of the companies in the smokable hemp case, said that argument was akin to banning baking soda to help enforce cocaine laws, per the Observer’s report.