The Ban of Smokable Hemp in Texas

Stephen Andrews
05 Jul 2022

Texas ban on smokable hemp is poised to affect operators based in the state. Hemp manufacturers may want to seek other legal states where to place headquarters after the Supreme Court of Texas rules against hemp production and retail.

Texas ban on smokable hemp comes with multiple consequences, including health and economic. It affects medical patients and businesses. 

The state's legal odyssey with hemp began shortly after introducing the 2018 Farm Bill. Texas Supreme Court initially banned hemp in 2019, after which the decision was challenged and brought to court over the summer of 2021 under the presumption the ban was unconstitutional. 

When the Texas Supreme Court agreed to hear the case in March this year, the court case was held with the Texas Department of State Health Services and four hemp operators, i.e., Crown Distributing, America Juice Co., Custom Botanical Dispensary, and 1937 Apothecary. 

The hemp companies asserted a right to "economic liberty" and a "freedom to work and earn a living," both integrated into the Texas Constitution. 

However, come end of June, Judge Jeffrey S. Boyd from the Texas Supreme Court shared his opinion that smokable hemp continues to be banned. He wrote: "Considering the long history of the state's extensive efforts to prohibit and regulate the production, possession, and use of the Cannabis sativa L. plant, we conclude that the manufacture and processing of smokable hemp products is neither a liberty interest nor a vested property interest in the due-course clause protects."

The companies complained that Texas law deprives them "of the ability to manufacture in Texas a product that is lawful," and to engage in "the manufacture and processing of smokable hemp products from exempt portions of the cannabis plant." 

But the court document goes on to say, "We are not convinced." Court analysis asserts that the companies manufactured hemp products during a time interval when the state of Texas had still not removed hemp from controlled substances schedules. In other words, the court claims the companies have been involved in an illegal action. It says the court is not convinced "by the fact that the Companies began processing and manufacturing and manufacturing smokable hemp products after the 2018 Farm Bill." 

Economic experts believe that the state loses with the decision to ban the production of smokable hemp. The ban will deter legal manufacturers out of the state. 

The state will lose millions in tax revenue by kicking hemp operators out. It will alone lose one million in taxes from a single manufacturer such as Wild Hempettes by 2024. This company sells various hemp goods, including wraps, tinctures, topicals, and CBD cigarettes. 

While the ban on smokable hemp manufacture is a massive blow to businesses, it is unclear whether Texas will remove recreational marijuana from the list of illegal substances either. Most political actors in the state remain against legalization. 

Stephen Andrews