The Third District Court of Appeals in Texas released a verdict on the state’s hemp smoking ban on August 5. Texas legalized hemp in 2019 and banned smoking hemp when the law went into effect. Regulators cannot prevent the production of products outside of the state. And if a product is manufactured outside of Texas, then it is legal to sell and smoke in the state. However, regulators can enforce a ban on the processing and manufacture of hemp products intended for smoking. The ban comes from the Texas Department of State Health Services (DSHS).

“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,” the court’s judgment said. “Nevertheless, the Department adopted a rule that banned not only the processing and manufacturing of consumable hemp products for smoking, but also the distributing and retail sale of such products.”

Court Case

Four retail companies in Texas filed a lawsuit in 2020 against the state’s smokable hemp ban.  However, if the state would have upheld this ban, businesses would have suffered severely.  At the time of the trial, Attorney Chelsie Spencer spoke with Marijuana Moment about her client and their case. The company she represents “stands to lose $59.6 million in revenue over the next five years if the bans (remains) upheld. The state of Texas stands to lose $2.9 million in sales tax revenue alone.”

The hemp industry is already struggling in Texas and this ban on smokable hemp would only make things worse. However, there is some confusion surrounding the court’s case. 

“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,” Justice Melissa Goodwin wrote in the court’s response. 

Companies can now sell smokable hemp products. Any smokable hemp products must be produced and manufactured outside of the state and imported into Texas stores. Hemp can be grown and produced in Texas, but it cannot be produced or manufactured into smokable hemp products or for smoking purposes. If a company looks to produce tinctures, edibles, lotions, or any other non-smokable product, then they can do so. The sale of smokable hemp products remains legal. Producing smokable hemp products in Texas still finds itself banned.

Smokable hemp legality could become contested again in the future because of the original wording in the ban. The original ban discussed the manufacturing and production of smokable hemp, but not the sale and distribution of said products.

Future

For now retailers can continue with business as usual. The four Texas companies who filed the lawsuit received compensation. They can continue to sell their products to the Texas general public. But there could come a time when that could change with legal rule changes. Should that happen, we will keep you updated with the latest.

Make sure to check back for more cannabis and hemp related news.