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The Battle To Allow Smokable Hemp In Texas

Vicente Sederberg LLP

Vicente Sederberg LLP

Texas has allowed hemp cultivation and state-based manufacturing, distribution, and retail sale of hemp and consumable hemp products since 2019—but only if the products weren’t intended for smoking. This prohibition on a product with such high value for hemp farmers—and soaring consumer demand—was sure to make waves.

Shane Pennington

VS counsel Shane Pennington and the legal team for the plaintiffs in the case Texas Department of State Health Services et al. v. Crown Distributing LLC et al. have been working hard to overturn that ban.

The first win for smokable hemp came in September 2020 when a Texas trial court issued a temporary injunction that barred the Texas Department of State Health and Human Services (DSHS) from enforcing the ban until the lawsuit went to trial.

In August 2021, Austin’s Third District Court of Appeals ruled that DSHS could enforce the ban on the processing and manufacturing of smokable hemp products but could not prohibit smokable hemp products made outside of Texas from being sold in the state. This was a significant win for Texas distributors, retailers, and consumers, as well as hemp brands nationally, but not for farmers and manufacturers in the Lone Star State.

Smokable hemp finally received a Texas-sized triumph on August 23, when Judge Lora Livingston of the 261st Civil District Court ruled the Texas smokable hemp ban unconstitutional. The trial court’s watershed ruling vindicates the economic liberty of Texas hemp farmers and operators seeking to prosper from this untapped segment of the Lone Star State’s hemp market, as well as Texas hemp consumers who can now proudly purchase “made in Texas” smokable hemp products.

Judge Livingston has ordered the parties to prepare a final judgment for her signature. Once a final judgment is in place, plaintiffs anticipate DSHS will likely appeal. While the case may return to Austin’s Third Court of Appeals, Texas’ Appellate Rules permit DSHS to proceed straight to the Texas Supreme Court where, as here, the trial court has declared a Texas statute unconstitutional.

The battle to allow smokable hemp in Texas—a timeline:

  • 2019: Texas House Bill 1325 was signed into law. This authorized the cultivation of hemp crops and the manufacture of hemp products and consumable hemp products, but prohibits the processing and manufacture of hemp products for smoking.
  • August 2020: Texas Department of State Health and Human Services (DSHS) issued rules regulating the manufacture and sale of consumable hemp products, including CBD products. The rule prohibited not just the processing and manufacture of smokable hemp products, but also the distribution and retail sale of consumable hemp products for smoking.
  • August 2020: Crown Distributing LLC v. Texas Department of State Health Services was filed to challenge the ban on smokable hemp products. This included the statutory prohibition on processing and manufacturing consumable hemp products for smoking and the regulatory ban on manufacturing, processing, distribution, or retail sale of consumable hemp products for smoking.
  • September 2020: The legal team obtained a temporary injunction against the State of Texas to prevent the enforcement of the smokable hemp ban.
  • March 2021: Plaintiff’s argument heard.
  • June 2021: DSHS’ petition requesting dissolution of the temporary injunction heard.
  • August 3, 2021: The Third District Court of Appeals declared the distribution and retail sale ban unlawful but reversed the trial court’s injunction against the manufacturing and processing bans for technical reasons.
  • August 23, 2021: Judge Lora Livingston of the 261st Civil District Court ruled that Section 443.204(4) of the Texas Health and Safety Code violates the Texas Constitution. Judge Livingston also ruled that “25 Texas Administrative Code Section 300.104 is invalid in its entirety” and granted a permanent injunction that categorically prohibits DSHS from enforcing the smokable hemp ban.

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