Texas Court Upholds Ban on Smokable Hemp

The Supreme Court of Texas upheld a 2019 ban on smokable hemp, overturning a lower court's decision to strike it down and criminalizing any businesses in the state that currently produce hemp products for smoking. The decision rejects the arguments of up to four Texas hemp companies. The Companies argued that the ban passed by Texas lawmakers was unconstitutional because it had no rational connection to any possible governmental interest and was “so burdensome as to be oppressive.” They further argued that the state’s ban on manufacturing and processing smokable hemp products infringes on their liberty and property rights to work and earn a living.

The companies relied on the 2018 Farm Bill that removed hemp from the federal Controlled Substances Act and defined it as an agricultural product, allowing each state to determine whether hemp would be allowed and how it should be regulated within its own borders. They added that in 2019, Texas had adopted a hemp plan that allowed for the sale of hemp within the state.

Although the Texas Legislature did adopt a hemp plan in 2019 generally permitting and regulating the cultivating, handling, manufacturing, processing, distribution, and sale of hemp within the state, an exception to this authorization stated that the plan expressly prohibits the “processing” or “manufacturing” of consumable hemp products for smoking.

The Supreme Court also refuted the four companies' argument that the state of Texas was prohibiting them from engaging in a business that had never been outlawed. They stated that any product created from the parts of the cannabis plant, such as its blooms, buds, or leaves, was regarded as marijuana under previous legislation and was strictly prohibited. The court also rejected the argument of unconstitutionality, viewing it as neither a liberty interest nor a vested property interest, and as such, it could not be covered. Interest is not vested when it depends on the anticipated continuation of existing legislation and is dependent on the legislature's right to amend the law and repeal the interest.

Although the four companies argued that upholding the ban would result in them exiting the state – a loss of a potential of a multi-million dollar industry, The Texas court pointed out that before 2019, it was unlawful for Texas to produce hemp thus, the manufacturers had little ground to claim that the ban on smokable hemp somehow eliminated a previously permitted business activity. This ruling is consistent with the state’s extensive efforts to prohibit and regulate the production, possession, and use of the Cannabis plant.