Texans can legally buy hemp-derived CBD oils for vaping and may also purchase smokable hemp flower, an appeals panel ruled August 5. At the same time, the justices upheld a ban on production and processing of hemp intended for smoking or vaping, according to a report from Marijuana Moment.
“The decision creates a situation in which consumers may be able to freely purchase smokable hemp flower and hemp-derived CBD oils for vaping, but only if the products are processed outside Texas and imported into the state,” writes Marijuana Moment reporter Ben Adlin.
Hemp companies wanted legal production and retail
Both production and sale of smokable hemp products have been allowed in Texas as a lawsuit made its way through the court of appeals. In September 2020, four Texas companies had challenged the ban, asking the court to declare the restrictions unconstitutional and to allow manufacture and sale of such products.
Justices OK sales, not production
The three-justice panel drew separate conclusions on production and retail sale based on who had put the regulations in place, according to Adlin. They upheld lawmakers’ decision to prohibit the processing and manufacture of smokable hemp, as specified when legislators legalized the plant in 2019. But restrictions on distribution and sales put in place by the Texas Department of State Health Services were beyond the scope of the law, the court determined.
“The Legislature required that the Department’s rules must reflect the principle that ‘the processing or manufacturing of a consumable hemp product for smoking is prohibited,’ but did not mention retail sale,” reads the panel’s memorandum.
The justices also said the nearly yearlong pause on production restrictions, in effect allowing manufacture to continue, shouldn’t have happened in the first place.
“Because the Hemp Companies never provided ‘a plain and intelligible statement of the grounds’ to enjoin the enforcement of rule 300.104’s bans on manufacturing and processing consumable hemp products for smoking, we conclude that the trial court abused its discretion in granting the temporary injunction and enjoining the enforcement of that portion of the rule,” the memorandum says.
The future is … hazy
Lawyers representing the hemp companies told Marijuana Moment this is not the final word on manufacturing and processing. “[T]hat portion of the ban is still being litigated and will likely see further argument in the trial court,” Adlin wrote.
Susan Hays, an attorney representing two hemp companies in the suit, told Law360, “It’s a shame the state keeps fighting responsible, compliant Texas smokable manufacturers when out-of-state manufactures hemp products can be sold in Texas.”
Others were slightly more optimistic about the ruling.
“The reversal of the ban on distributing and selling smokable hemp products is a big win for Texas farmers and hemp businesses. It is extremely important that regulatory overreach is kept in check so that Texas companies are not prevented from excelling in this market,” Jax Finkel, executive director of Foundation for an Informed Texas, told Marijuana Moment. “I am hopeful that manufacture portion of the suit will end in a similar opinion.”
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