The Texas Supreme Court on Tuesday heard oral arguments concerning the state’s ban on manufacturing smokable hemp products—the latest development in a drawn-out legal battle on the policy first proposed and challenged in 2020.
A lower court determined in August that a proposed ban on the manufacturing and sale of smokable hemp was unconstitutional and imposed a permanent injunction that barred the state from prohibiting the full range of hemp activity. Texas officials then raised the in-state manufacturing matter to the state’s highest court.
Hemp products—including those that can be inhaled—have been legal in Texas since Congress federally legalized the crop under the 2018 Farm Bill and the legislature followed suit, so long as the cannabis contains no more than 0.3 percent THC per dry weight. But regulators threw the industry for a loop when the Department of State Health Services proposed a rule prohibiting the manufacturing and sale of smokable hemp products within the state.
Following a lower court ruling last year, the state dropped its ban on selling smokable hemp; however, it maintained a rule that those products could only be lawfully sold if they were manufactured and processed out of state. It’s a point that hemp stakeholders and the legal counsel of four cannabis businesses in the state who brought about the original lawsuit have consistently emphasized.
“Because consumption was not banned in the state of Texas, there really is no underlying governmental interest” in banning manufacturing, attorney Chelsie Spencer told Marijuana Moment in a phone interview on Tuesday.
At the state Supreme Court hearing on Tuesday, the primary question from justices was whether officials could prove that there was a “rational basis” for the regulation. There were repeated references to a prior court case, Patel vs. the Department of Licensing & Regulation, which found the state had imposed an undue burden on the cosmetology industry with regulations it enacted for commercial eyebrow threading.
Justices asked a wide range of questions around the rationality of the state’s hemp manufacturing regulations.
The state’s deputy solicitor general, Bill Davis, made the argument that there was a rational basis to the rule because smoking hemp is a public health concern and because of law enforcement complications that result from officers struggling to distinguish between flower hemp and marijuana.
With respect to the health claim, counsel for the plaintiffs rejoined that there’s nothing stopping Texans from buying and smoking hemp if they cross the border or buy products online, so that point is moot. Rather, the policy is simply inhibiting in-state businesses from profiting from a popular market and leading many to leave the state.
With respect to the law enforcement argument, Spencer said that “if that was the state’s true interest here in regulating smokable hemp products, they would have banned use and possession by the consumer. As it stands, consumers can simply drive across the border or order from online. All they’ve done is specifically targeted Texas based companies.”
The attorneys said they expect the state Supreme Court to reach a decision on the case this summer.
“This is about a stupid law,” Matt Zorn, another attorney involved in the case, told Marijuana Moment. He noted that, during Tuesday’s hearing, it was mentioned by a justice that just because a law might be “stupid,” that doesn’t necessarily mean it’s irrational.
“I think he’s correct. But this law is stupid and irrational,” he said. “I’m just hoping that the justices take a really close look at the actual law…and make a judgment as to whether or not this was rational.”
One area of concern that the lawyers flagged concerns remarks from Justice Jimmy Blacklock, who suggested that the businesses behind this legal challenge “should have been made at a legislative hearing,” rather than in a courtroom.
Spencer said that assessment “flies in the face of 200-plus years of jurisprudence in the United States.”
Meanwhile, Texas’s hemp industry scored a largely unrelated legal victory late last year after a judge ruled that state regulators would be temporarily prohibited from enforcing a ban against the sale of delta-8 THC products. While regulators sought to challenge the injunction with the state Supreme Court, justices denied the motion in December, meaning delta-8 can continue to be lawfully produced and sold in Texas.
Beyond hemp, the Republican governor of Texas said in January that he doesn’t believe people should be incarcerated over low-level marijuana possession, effectively endorsing decriminalization. He made the remarks on the same day that Austin officials certified a ballot initiative to enact the reform on the local level.
Gov. Greg Abbott (R) made similar comments during a debate in 2018, saying that “one thing I don’t want to see is jails stockpiled with people who have possession of a small amount of marijuana.”
“I would be open to talking to the legislature about reducing the penalty for [marijuana] possession of two ounces or less from a Class B misdemeanor to a Class C misdemeanor,” he said at the time.
The Texas House went on to approve a cannabis decriminalization bill in 2019, but it did not advance in the Senate that session and never made it to Abbott’s desk due to the opposition of Lt. Gov. Dan Patrick (R), who controls the chamber’s agenda.
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The Texas Republican Party adopted a platform plank endorsing decriminalization of marijuana possession in 2018.
Separately, Democrat Beto O’Rourke, a former congressman and El Paso City Council member, is running for governor this year and supports full marijuana legalization.
While there’s no statewide ballot process in place for citizen initiatives in Texas, drug policy reform did advance in the state legislature during last year’s session, but not necessarily at the pace that advocates had hoped to see.
A bill to expand the state’s medical cannabis program and another to require a study into the therapeutic potential of certain psychedelics for military veterans were enacted. Abbott signed the former but let the other become enacted without his signature
Advocates remain disappointed, however, that lawmakers were unable to pass more expansive cannabis bills—including a decriminalization proposal that cleared the House but saw no action in the Senate.
A Texas poll that was released over the summer found that 60 percent of voters in the state support making cannabis legal “for any use.”