JudicialTexas Supreme Court Agrees to Hear Challenge to State’s Ban on Smokable Hemp Production

“[T]he regulation at issue shuts out hemp businesses from manufacturing and processing a good that is legal," the companies wrote.
December 22, 2021
The Supreme Court of Texas has accepted a challenge to Texas’ prohibition on hemp for smoking.

A group of hemp companies is suing the Texas Department of State Health Services (DSHS), the state agency in charge of regulating consumable hemp. After the companies won at district court, the agency appealed and the state’s highest civil court agreed to hear oral arguments on March 22.

The state law at issue, passed in 2019, prohibits the manufacture of hemp meant to be smoked. It followed the passage of the federal 2018 Farm Bill, which legalized hemp nationwide.

The Texas hemp companies in this lawsuit, led primarily by Crown Distributing, sued DSHS in Travis County district court and won a declaration that the ban on smokable hemp is unconstitutional. Judge Lora Livingston also issued an injunction that prevents DSHS from enforcing the ban.

“Based on the entire record in this case, the Court concludes that Texas Health and Safety Code Section 443.204(4) is not rationally related to a legitimate governmental interest,” Livingston wrote in her final judgment.

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“In addition, based on the entire record in this case, the real-world effect of Texas Health and Safety Code Section 443.204(4) is so burdensome as to be oppressive in light of any legitimate government interest.”

DSHS appealed to the Supreme Court of Texas on December 3. DSHS filed a statement of jurisdiction arguing that procedure allows the court to take up the case, but the agency has not submitted arguments on the merits yet.

The group of hemp companies argues that the law itself is unconstitutional.

“[T]he regulation at issue shuts out hemp businesses from manufacturing and processing a good that is legal,” the companies wrote.

Furthermore, they claim that DSHS enforces the law too strictly by prohibiting the sale of smokable hemp when the law only prohibits the “processing or manufacturing” of smokable hemp.

“In June 2019, Governor Abbott signed legislation establishing a hemp program for Texas. Among other things, it directs the executive commissioner of DSHS to prohibit ‘the processing or manufacturing of a consumable hemp product.’ The Rule DSHS later adopted in 2020, however, went much further: The Rule prohibits the ‘manufacture, processing, distribution, or retail sale of consumable hemp products for smoking,’” the companies note.

Though some state lawmakers had high hopes for full marijuana legalization during the 87th legislature, the major efforts to ease restrictions faltered.

The Supreme Court agreed on December 17 to hear oral arguments, scheduling them for March 22.


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Isaiah Mitchell

Isaiah Mitchell is a reporter for The Texan, a Texas native, and a huge Allman Brothers fan. He graduated cum laude from Trinity University in 2020 with a degree in English. Isaiah loves playing music and football with his family.