But distribution and sale of smokable hemp will remain legal.
The Texas Supreme Court on June 24 upheld a ban on the production of smokable hemp in the state, reports MJBizDaily. The ruling bars farmers and processors from making products from hemp flower pre-rolls to CBD vapes, which were given a pass as the issue moved through the courts.
The legal battle began in late 2020: After the Texas Department of State Health Services initiated the ban on smokable hemp, it was almost immediately challenged by four hemp companies.
In August 2021, an appeals panel ruled that Texans could legally buy smokable hemp products. But the justices upheld the health department’s ban on growing and processing hemp for smoking or vaping. (In effect, people could purchase and possess it but it couldn’t be made in the state.)
A few weeks later, a state district court ruled that the ban on production of smokable hemp was unconstitutional. The Department of State Health Services brought the decision to the high court, filing for appeal in December.
The Texas Supreme Court was tasked with reviewing the second ruling, which established that smokable hemp could be legally grown and processed in Texas. Many in the hemp industry also encouraged the court’s review, seeking clarity on the law. Now they have clarity, though not the answer they were likely hoping for.
In Friday’s decision, the justices said they weren’t convinced by the hemp companies arguments that the state’s ban on smokable hemp “has no rational connection to any possible governmental interest” or is “so burdensome as to be oppressive.”
“Ultimately, the Hemp Companies complain that Texas law does not permit them to manufacture or process products that Texas law prohibited for nearly a century,” reads the opinion authored by Justice Jeffrey Boyd.
“Ultimately, the Hemp Companies complain that Texas law does not permit them to manufacture or process products that Texas law prohibited for nearly a century.”
— Justice Jeffrey Boyd, Supreme Court of Texas
“The legislature’s recent decision to adopt a ‘new framework’ that permits the possession and use of those products, and even allows the manufacture and processing of similar products, does not transform the Hemp Companies’ desire to produce products that the law still prohibits them from producing into a constitutionally protected interest,” Boyd continued.
“Considering the long history of the state’s extensive efforts to prohibit 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 neither a liberty interest nor a vested property interest the due-course clause protects. It is, instead, ‘purely a personal privilege’ that the people’s elected representatives in the legislature may grant or withdraw as they see fit.”
The ruling notes that distribution and sale of smokeable hemp products will be considered legal in the state.
"Because the Department no longer defends the portion of rule 300.104 that prohibits the ‘distribution’ and ‘retail sale’ of consumable hemp products for smoking, the trial court’s injunction against enforcement of that portion remains. We otherwise reverse the trial court’s judgment and render judgment accordingly.”
Timeline: Smokable Hemp in Texas
2018 — U.S. legalizes hemp at federal level with the 2018 Farm Act.
2019 — Texas legalizes hemp, but lawmakers specifically prohibit the processing and manufacture of smokable hemp.
August 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.
August 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 justices uphold the ban on growing and processing hemp that’s intended for smoking or vaping. (In effect, people could purchase and possess 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.
March 2022 — Texas Supreme Court hears oral arguments in the appeal.
June 2022 — Texas Supreme Court rules that the manufacture and processing of smokable hemp are illegal according to state law. However, distribution and retail sale are allowed.