Texas Supreme Court agrees to hear smokable hemp case

Texas Supreme Court agrees to hear smokable hemp case

State health department filed appeal, but hemp companies encouraged high court’s review

The Texas Supreme Court has accepted an appeals case on the issue of smokable hemp, a category that includes hemp flower and CBD vapes. The court will review an August ruling that called the state’s ban on smokable hemp unconstitutional, establishing that it could be legally grown and sold in Texas.

The Texas Department of State Health Services had filed a notice of appeal in early December regarding that decision, asking the Supreme Court to uphold the health agency's ban on smokable hemp.

The court announced Dec. 17 that it would take the case, with arguments scheduled for March 22, 2022, reports Hemp Industry Daily.

Although the health department brought the case to the Texas Supreme Court, Law360 reported that the hemp retailers and manufacturers on the other side of the lawsuit encouraged the court’s review, reasoning that the industry needs regulatory certainty instead of a long, drawn out legal battle.

In a separate but similar legal fight, the Texas Supreme Court recently dismissed a request from the Texas Department of State Health Services to overrule a lower court’s decision on the legality of hemp-derived delta-8 THC in the state.

The issue of smokable hemp has been a matter of contention since August 2020, when the state health department made the call to restrict sales and distribution of smokable hemp. But the seeds were planted even sooner, when the state legislature legalized hemp except for smoking.

Timeline: Smokable Hemp in Texas

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

2019 — Texas legalizes hemp, but not for smoking. Lawmakers specifically prohibit the processing and manufacture of smokable hemp.

2020 — Based on its interpretation of the 2019 legislation, the Texas Department of State Health Services decides to restrict distribution and sales of smokable hemp, effective August 2020.

2020 — Four Texas companies challenge the health department’s ban, asking a district 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.

August 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. (People could buy it legally but it couldn’t be made in the state.)

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

December 2021 — December 3, Texas Department of State Health Services files notice of appeal with the Texas Supreme Court. The court accepts the case Dec. 17, with oral arguments scheduled for March 22, 2022.