Texas CBD and gift shop challenges city’s ‘head shop’ rules

Texas CBD and gift shop challenges city’s ‘head shop’ rules

A Texas gift-shop chain that sells smokable hemp and vaping supplies, among other items, is suing to keep its shop open in a city outside Austin, reports MJBizDaily.

The owner of Planet K Gifts filed a federal lawsuit May 31 against the City of Cedar Park asking the court to declare the city’s “head shop" definition unconstitutional and unenforceable.

Planet K, which has 21 stores in Texas, opened its Cedar Park location in late November 2021. In early December, the city issued a violation notice telling the business to cease operations. According to the city, Planet K’s inventory met the definition of head shop, a prohibited use in Cedar Park. Planet K refused the order.

The city defines head shop as a business selling any item “commonly used, intended to be used, or commonly known to be used” to ingest or inhale an illegal substance, even if the item can also be used for a legal purpose.

In its suit, Planet K asserts that hemp's legalization made the city’s definition obsolete.

"The City’s head shop definition was adopted before the use of hemp and other CBD products were legalized in Texas in 2019,” the complaint reads, “and does not take into account that certain items that were once considered to only be used to smoke marijuana and other illicit substances are now used to legally smoke CBD hemp flower. Smoking hemp is a perfectly legal and oftentimes preferred method of obtaining the medical benefits of CBD.”

“Smoking hemp is a perfectly legal and oftentimes preferred method of obtaining the medical benefits of CBD.”

— From Michael Kleinman ... v. City of Cedar Park

The suit also alleges that the city attempted to force the shop’s closure by cutting both water and wastewater services and filing numerous complaints against the store, including that it wasn’t hooked up to water or wastewater.

In addition to the request that a judge rule the city’s head shop exclusion unenforceable, Planet K asked the court to order the city to restore water and wastewater services and pay damages for costs incurred as a result of the shut offs.

The city has not yet responded to the lawsuit, according to MJBizDaily.

Texas has not proven an especially friendly place for the hemp industry.

There’s been a legal battle over smokable hemp since 2020, when the Texas Department of State Health Services initiated a ban on products like hemp flower and CBD vapes. The Texas Supreme Court heard arguments in March addressing the ban on making and selling smokable hemp.

Texas prosecutors charged a licensed hemp grower with felony drug possession in August 2021 for hemp that slightly exceeded the legal THC limit. The charges were later dropped, but the founders of Sky & Hobbs Organics said the raids and legal process had destroyed their business.

And the state’s health department announced a ban on hemp-derived THC last October, saying it had moved delta-8 and all THC isomers to the state’s list of Schedule I controlled substances. A hemp company brought the health department to court, saying the agency had failed to properly notify the public. Delta-8 and other hemp-derived THC will remain legal as the lawsuit plays out.