Texas Ban On Selling Smokeable Hemp Temporarily Lifted By Judge

A Texas judge gave four hemp companies a procedural victory on Wednesday, temporarily lifting the state’s ban on smokeable hemp products.

Activists celebrated the win and see it as a sign that the ban will be indefinitely removed as the case moves forward.

While Texas legalized the nonintoxicating version of the cannabis crop last year, the law was written in a way that only prohibited the manufacturing of smokeable hemp, leaving an opportunity for businesses to import and sell the product from other states.

But the state’s Department of State Health Services (DSHS) issued implementation regulations that went into effect earlier this month that go further and explicitly forbid the sale of any smokeable hemp products, prompting four companies to file suit in Travis County District Court. They argued that the ban is unconstitutional and asked the court to make it so companies can produce and sell the items in-state.

Now, Judge Lora Livingston has taken preliminary action, issuing a temporary restraining order (TRO) that enjoins the state from enforcing the ban on smokeable hemp producing, processing and sale.

The TRO expires on September 2, when the court will hold a hearing on the plaintiffs’ request for temporary injunctive relief.

“We applaud the judge’s decision,” Zachary Maxwell, president of Texas Hemp Growers, said in a press release. “While today’s ruling is not a concrete declaration that the state overstepped its boundaries, it does reinforce the idea that manufacturing, processing and selling smokable hemp products in Texas was perfectly legal prior to the enactment of the rule on Aug. 2.”

“This ban punitively targeted Texas’ small business owners during a time of economic contraction,” he said. “The TRO will provide some confidence to the marketplace that the citizens of this state demand full plant access.”

Texans for Responsible Marijuana Policy has been closely following the case as well. When the ban was first proposed by regulators last year, the group mobilized hundreds of supporters to submit comments opposing the rule change.

Plaintiffs in the case say that the legislature’s original ban on processing and manufacturing smokeable hemp, and not just regulators’ sales block, also violates the state constitutions’s protections for economic freedom. They also argued that DSHS doesn’t have the authority to expand the ban on selling those products.

Further, prohibiting in-state sales creates excessive logistical problems, their lawsuit states. Smokeable hemp flower can’t be distinguished from hemp grown for other purposes, and so the ban creates a risk of companies mislabeling their products to avoid the prohibition.

The legalization of hemp in Texas has created other policy complications, too. The fact that hemp and marijuana are virtually indistinguishable has led law enforcement agencies to say they can’t consistently prosecute individuals without conducting lab analyses of seized cannabis for THC.

Because of that, prosecutors have dismissed hundreds of low-level cannabis cases since the policy change.

State officials announced in February that labs wouldn’t be performing testing in misdemeanor cases, with the the Texas Department of Public Safety saying it “will not have the capacity to accept those.”

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Photo courtesy of Martin Alonso.