Judge Rules Texas Ban on Smokable Hemp Unconstitutional

Texans will have the ability to legally manufacture smokable hemp products after all. A judge in the Travis County District Court in Texas ruled that a ban on smokable hemp in the state is unconstitutional—siding with several hemp companies that filed a lawsuit, challenging the 2019 ban on smokable hemp products passed by Texas lawmakers.

Last year, four hemp businesses filed the lawsuit in a Travis County District Court against the Texas Department of State Health Services and its commissioner—John Hellerstedt. In the end, they prevailed. This follows a ruling last week that allows smokable hemp to be sold in Texas. With the latest ruling, smokable hemp products can also be manufactured in the state.

Judge Lora Livingston of the 261st District Court sent a letter dated August 23 with her ruling to toss out the ban in the case Crown Distributing LLC, et al. v. Texas Department of State Health Services, et al. The judge indicated in the letter that a final judgment should be prepared and submitted for her signature soon.

In the ruling, Judge Livingston ruled that Section 443.204(4) of the Texas Health and Safety Code and Section 122.301(b) of the Texas Agriculture Code violate the Texas Constitution.

Section 443.204(4) of the Health and Safety code reads “the processing or manufacturing of a consumable hemp product for smoking is prohibited.” Section 122.301(b) of the Agriculture Code clarifies that a state agency “may not authorize a person to manufacture a product containing hemp for smoking.”

Judge Livingston ruled that “25 Texas Administrative Code Section 300.104 is invalid in its entirety.” Section 300.104 regards the manufacturing and sale of hemp, specifically.

The judge also granted a permanent injunction against the Texas Department of State Health Services from enforcing the ban via the sections above.

According to locals, the ban didn’t apply to using smokable hemp—only manufacturing it—so Texas residents were routinely crossing state lines or going online to buy it.

Several months ago, the Dallas Observer reported that Texas law enforcement officers keep confiscated hemp-derived products in general, which are legal at the federal level under the 2018 Farm Bill. 

The Hemp Industry Rejoices Ban Lift on Smokable Hemp

Hemp industry insiders across the board were thrilled with the latest legal curveball—considering the vast potential of hemp cigarettes and similar products. As more people become interested in smoking cannabis during the day without it impacting workflow and motor skills, hemp cigarette products are booming.

Smokable hemp products are frequently a hot topic among opponents to cannabis reform because they are almost indistinguishable from cannabis products. They are favored by some consumers because they offer fast delivery of hemp-derived CBD. Due to their popularity, smokable hemp-derived CBD products represent a significant share of the overall CBD market.

“Today’s ruling is a major win for Texas’ hemp industry, and may set a new standard in similar cases across the country,” President of Texas Hemp Growers Zachary Maxwell said in a release. “The attorneys behind the Texas Hemp Legal Defense Fund fought hard, brought fact-based arguments to the courtroom and proved the undeniable financial harm caused by this cavalier ban.”

Hemp Industry Daily called it a “watershed decision” that unlocks Texas to a hemp market that could potentially generate $400 million in annual sales by 2025.

Several other states are moving in the same direction. A few years ago, a judge in Indiana also ruled that banning smokable hemp was unconstitutional. Earlier this year, a similar bill passed in Louisiana, allowing smokable forms of cannabis.