The Fight Over Hemp’s Legality

Departments - From the Editor

September 10, 2021

In early August, an appellate court in Texas delivered a blow to the state’s hemp industry, ruling that the sale and distribution of smokable hemp products were allowed, but their production was not. It appeared to be a harsh loss after a year-long lawsuit filled with highs and lows.

But the story isn’t over yet: Not even 30 days after that decision, a district court ruled that ban unconstitutional.

Followers of the smokable hemp saga may be feeling a sense of déjà vu. Indiana producers went through a similar legal battle filled with back-and-forth rulings for two years until the plaintiffs—hemp and CBD companies that sued over that state’s smokable hemp ban—dropped the case in May. (Though at that time, Justin Swanson, president of the Midwest Hemp Council and the attorney representing the plaintiffs, told me they decided to shift their focus on changing lawmakers’ minds instead. In other words, the fight isn’t over.)

Smokable hemp isn’t the only victim of regulatory uncertainty. CBD producers, too, are still feeling the pang of unclear, shifting and, at a federal level, absent regulations. The lack of clarity will keep mainstream consumer packaged goods companies from entering the ingestible CBD market until they receive federal guidance, writes Madeline Obrzut, content specialist for Brightfield Group, in this month’s “Hemp Watch”.

This game of ping-pong over the legality of hemp and its various forms is doing more than giving industry players whiplash—it’s stifling the growth of hemp’s most lucrative markets, years after the 2018 Farm Bill legalized hemp and its derivatives.

Despite the onerous battle, it’s heartening to see so many in the industry fight the good fight. The plaintiffs in both smokable hemp cases are groups of hemp companies, and many CBD business owners now are not just CEOs, but also industry advocates.

Allan Gandelman, president and co-founder of New York Hemp Oil (NYHO) and vertical CBD brand Head & Heal, is another person who has helped push the industry forward in his state. Gandelman founded the New York State Cannabis Growers & Processors Association, which has helped craft laws that have, among other things, legalized and set standards for hemp flower and ingestible CBD products in the state.

Together, he and NYHO/Head & Heal co-founder Karli Miller-Hornick have helped pave the way for not only their business, but also other businesses in the state to thrive. (See the cover story for more.)

Still, even Gandelman knows there’s more work to be done. When asked what keeps him awake at night, Gandelman responded: “My biggest concern is the federal government—the inaction of the FDA and the USDA when it comes to supporting small farms.”

Theresa Bennett