The Smokable Hemp Ban in Texas is Enjoined Until 2021

In June of 2019, the state of Texas passed HB 1325, which, in part, authorizes and directs the Texas Department of State Health Services (“DSHS”) to enact rules regarding the processing and manufacturing of smokable hemp products. See Tex. Health & Safety Code § 443.204(4). In August of 2020, DSHS banned the processing, manufacturing, distribution, and retail sale of smokable hemp products throughout the state of Texas. See Tex. Admin. Code § 300.104. With its excessive regulations, DSHS essentially stifled the smokable hemp market in Texas, forcing existing companies, such as Crown Distributing LLC (“Crown”), to move their businesses out of state.

Lawsuit Against DSHS

Ritter Spencer Cheng PLLC, representing lead Plaintiff Crown, filed a lawsuit against DSHS to challenge and overturn the smokable hemp ban in Texas. In late September, Travis County Judge Lora Livingston determined that Plaintiffs had demonstrated “a probable right to relief,” and granted an injunction that effectively voids the ban on smokable hemp manufacturing, processing, distribution, and sale until a trial on the merits. The trial is set for February 1, 2021; however, Defendants have filed an interlocutory appeal seeking to invalidate the temporary injunction.

Nonetheless, the recent decisions made by Judge Livingston are indicative of significant progress in the challenge on the smokable hemp ban, and some opponents of the ban believe they are a sign of a potential victory. The director of Texans for Responsible Marijuana Policy, Heather Fazio, stated that the “rulings relating to this lawsuit are very encouraging.” 

The Stance Against the Texas Smokable Hemp Ban

Plaintiffs are challenging the bans on two grounds. First, Plaintiffs contend that the statutory ban in Tex. Health & Safety Code Section 443.204(4) violates the Texas Constitution’s due course of law provision. Second, Plaintiffs are challenging the DSHS ban on the basis that DSHS lacks the authority to ban the retail sale and distribution of smokable hemp. In support of their claims, Plaintiffs are arguing that banning smokable hemp products would be detrimental to Texas’ economy, as hemp manufacturers, distributors, and retailers in Texas would no longer be able to compete with those in states with more progressive approaches to cannabis and smokable hemp. The recent developments in the lawsuit are promising and Ritter Spencer Cheng will continue to fight for resolution on this matter.  

Hemp lawyer Chelsie Spencer is active in the cannabis community and is dedicated to providing legal services and support to a range of hemp, marijuana, and CBD businesses. With extensive experience in hemp and marijuana law, transactional issues, commercial and intellectual property law, and copyrights and trademarks, Chelsie offers dynamic expertise for a variety of legal needs and requirements. Contact Ritter Spencer Cheng or call us at 214.295.5070 for more information.