A Texas court has partially reversed the state’s pause on a smokable hemp ban, allowing for the sale and distribution of these products but prohibiting their production.
The decision stems back to an August 2020 lawsuit, Crown Distributing LLC, et al. v. Texas Department of State Health Services, et al., in which a group of hemp companies sued the state after the Texas Department of State Health Services (DSHS) outlawed smokable hemp products. (Those companies are Crown Distributing LLC, America Juice Co. LLC, Custom Botanical Dispensary LLC and 1937 Apothecary LLC.)
In 2019, Texas Gov. Greg Abbott signed H.B. 1325 into law, regulating the state’s hemp program. The law prohibits the manufacturing and processing of smokable hemp in the state. According to the law: “A state agency may not authorize a person to manufacture a product containing hemp for smoking, as defined by Section 443.001, Health and Safety Code.” The code defines “smoking” as “burning or igniting a substance and inhaling the smoke or heating a substance and inhaling the resulting vapor or aerosol.”
Shortly after Abbott signed H.B. 1325, DSHS proceeded to also prohibit the sale of smokable hemp in Texas.
In September, a Texas district court ruled that she would temporarily prevent the state from enforcing its entire ban on smokable hemp until the next court hearing.
In their lawsuit, the companies have claimed the state law's ban on smokable hemp is unconstitutional and that DSHS took that prohibition even further when they also outlawed the sale and distribution of hemp in the state.
During the most recent hearing, a three-justice panel of the Third Court of Appeals agreed with the DSHS that the temporary injunction provided more relief than requested, as reported by Law360.
The court also found that the DSHS ban on smokable hemp sales did extend beyond the meaning of H.B. 1325. As such, the court ruled to allow the ban on the production of smokable hemp in the state, as written into law. However, smokable hemp sales and distribution are still permitted in the state.
"Because the hemp companies never provided 'a plain and intelligible statement of the grounds' to enjoin the enforcement of [the ban] 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 opinion.