The Texas Supreme Court has agreed to hear a case challenging the state’s ban on smokable hemp and has scheduled oral arguments for early next year.

Following the legalization of hemp at the federal and state levels through the 2018 Farm Bill 2018, Texas lawmakers approved legislation prohibiting the production of smokable hemp products. Smokable hemp products are often high in CBD and other cannabinoids. This is especially true for states that do not have legal marijuana.

Four hemp companies filed a lawsuit against John Hellerstedt, the commissioner of Texas Department of State Health Services, in Travis County District Court in 2020. Hellerstedt is the Texas agency that regulates consumable hemp. The 261st District Court Judge Lora Livingston ruled that August’s ban on smokable hemp was not constitutional and issued a permanent order preventing the DSHS enforcing it.

“Based on the entire record in this case, the Court concludes that Texas Health and Safety Code Section 443.204(4) is not rationally related to a legitimate governmental interest,” Livingston wrote in her final judgment.

“In addition, based on the entire record in this case, the real-world effect of Texas Health and Safety Code Section 443.204(4) is so burdensome as to be oppressive in light of any legitimate government interest,” Livingston continued in her ruling.

Zachary Maxwell, the president of Texas Hemp Growers, applauded Livingston’s ruling after the judge struck down the ban.

“Today’s ruling is a major win for Texas’ hemp industry, and may set a new standard in similar cases across the country,” Maxwell said in a press release at the time. “The attorneys behind the Texas Hemp Legal Defense Fund fought hard, brought fact-based arguments to the courtroom and proved the undeniable financial harm caused by this cavalier ban.”

Health Department appeals against Ban

On December 3, the DSHS appealed the judge’s ruling to the Texas Supreme Court, asserting that the high court has jurisdiction in the civil case. The high court accepted the case and scheduled arguments for March 22, 2022.

The plaintiffs in the suit against DSHS, four hemp companies led primarily by Crown Distributing, argue that the smokable hemp ban is unconstitutional, writing that “the regulation at issue shuts out hemp businesses from manufacturing and processing a good that is legal.” They also argue that the DSHS has interpreted the law too strictly by banning the sale of smokable hemp, noting that the regulations only prohibit the “processing or manufacturing” of such products.

“In June 2019, Governor Abbott signed legislation establishing a hemp program for Texas. Among other things, it directs the executive commissioner of DSHS to prohibit ‘the processing or manufacturing of a consumable hemp product.’ The Rule DSHS later adopted in 2020, however, went much further: The Rule prohibits the ‘manufacture, processing, distribution, or retail sale of consumable hemp products for smoking,’” the companies wrote in court documents.

Sam Alvez (manager of 7th Heaven Smoke Shop, Killeen Texas) stated to local media that his customers use medicinal hemp after the 2020 ban on smoking.

“Our customers always tell us how much CBD changes their lives,” Alvez said. “They sleep better; their knees don’t hurt—they’re taking medicine away, that’s what they’re doing.”

He noted that a significant portion of his income was at stake with the ban.

“This is likely to cut our business by 50 percent maybe—we’re looking at a good 50 percent. I personally don’t think they know what they’re doing,” referring to Texas lawmakers. “They legalized it, but now they’re taking it back. I don’t understand that part of it.”