A Texas judge has struck a victory for freedom and common sense, ruling that a ban on smokable hemp in the state is unconstitutional. Travis County District Court Judge Lora Livingston of the 261st District Court ruled that lawsuits brought by plaintiffs challenging the 2019 ban on smokable hemp products passed by Texas lawmakers is in good standing and that “the rule is invalid and cannot be applied to Wild Hempettes insofar as the Legislative Ban violates” the Texas Constitution, noting that smokeable cannabis product is legal under the Federal Farm Bill of 2018.
The litigation was set in motion when Texas Gov. Greg Abbott signed H.B. 1325 into law in 2019., thereby regulating the state’s hemp program. The law codified the regulations with the following language:
(b) A state agency may not authorize a person to manufacture a product containing hemp for smoking, as defined by Section 443.001, Health and Safety Code.
It was Section 443.001 of the Health and Safety Code, the lack of authorization for smoking, that the Texas legislature seized upon to restrict this cannabis commerce. As a result of this action, Texas Department of State Health Services (DSHS) proceeded to prohibit the sale of smokable hemp in Texas, citing 443.001.
According to hempgrower.com, the decision by Judge Livingston “. . .stems back to an August 2020 lawsuit, Crown Distributing LLC, et al. v. Texas Department of State Health Services, et al., in which a group of hemp companies sued the state after the Texas Department of State Health Services (DSHS) outlawed smokable hemp products.” The plaintiffs sought to attack two aspects of the ban. First, the legislature’s initial ban on production and processing of smokable hemp, and second, the DSHS added ban on distribution and sale. Judge Livingston agreed, striking down the following aspects of the ban:
- Texas Health and Safety Code Sec. 443.204(4) – “the processing or manufacturing of a consumable hemp product for smoking is prohibited.“
- Texas Agriculture Code Sec. 122.301(b) – ” A state agency may not authorize a person to manufacture a product containing hemp for smoking, as defined by Section 443.001, Health and Safety Code.“
- 25 Texas Administrative Code Sec. 300.104 – “The manufacture, processing, distribution, or retail sale of consumable hemp products for smoking is prohibited.“
So, while the health code did not ban the consumption of smokeable hemp products, it forbid the manufacture, processing, and distribution of these products. If that‘s a real head-scratcher, you are not alone, as the lawsuit took this illogical rhetoric to task.
In the lawsuit, the plaintiffs laid out the simple logic as to why, beyond the lack of Constitutionality, the band was ill-conceived. To begin with, the plaintiffs argued,“The law does not ban the use or consumption of smokable hemp products. As such, Texas consumers will simply buy smokable products made out-of-state. If Texas had banned the processing and manufacture of cheese in Texas, Texans wouldn’t stop eating cheese.” This economic appeal likely bolstered the import of the lawsuit.
The President of Texas Hemp Growers, Zachary Maxwell, celebrated the ruling in a press release, saying, “Today’s ruling is a major win for Texas’ hemp industry, and may set a new standard in similar cases across the country. 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.”
Of course, the plaintiffs had cause for celebration as well. Matt Zorn, one of the lead attorneys on the case, told Marijuana Moment, “We’re pleased with the result. This law never made any sense, was an unjustifiable infringement of liberty when enacted and would have seriously hurt the Texas hemp industry from farmers to consumers if allowed to move forward. After a full trial, the court saw things our way and declared the statute unconstitutional under the Texas Constitution.”
However, Texas has a ways to go in the eyes of marijuana activists, especially where medical marijuana is concerned. According to the texas.gov website, “Texas’s Compassionate Use Program (CUP) allows certain physicians to prescribe low tetrahydrocannabinols (THC) cannabis for medical purposes. Low-THC comes from the plant Cannabis Sativa L. All parts of the plant and any resulting compounds, salts, resins, oils and derivatives that contain no more than 0.5 % by weight of THC are considered Low-THC. Medical use of these substances is limited to swallowing, not smoking, the prescribed dose of low-THC.”
While this is good news in general, the qualifying conditions are limited to the following:
- Epilepsy
- Seizure disorders
- Multiple sclerosis
- Spasticity
- Amyotrophic lateral sclerosis
- Autism
- Terminal cancer
- An incurable neurodegenerative disease
Later, Texas H.B. 1535, which was passed and will take effect on September 1, 2021, allows the following new conditions to be treated under the CUP program:
- a condition that causes chronic pain, for which a physician would otherwise prescribe an opioid;
- post-traumatic stress disorder;
- a medical condition that is approved for a research program under Subchapter F, Chapter 487, Health and Safety Code, and for which the patient is receiving treatment under that program; or
- a debilitating medical condition designated by the Department of State Health Services
Moreover, 1535 moves the concentration level of the permissible concentration level of THC from .5% to 5%, a significant increase given that THC is the primary cannabinoid responsible for elevated moods and pain relief.
While still restrictive, it’s a step in the right direction. Larry Johnson, a Vietnam war veteran, was glad Texas is giving vets with PTSD options, saying, “This bill that the governor is going to sign, I think it can be a big game-changer as long as everyone keeps an eye on it and how it is administered. I think it can save lives.”
And Nick Etten, a former Navy SEAL, is also optimistic about the future, saying,“Shifting ahead, we are going to proceed to work with lawmakers in future legislative periods to construct on this legislation, develop a broader method in the direction of medical hashish, and ensure it’s an actually efficient medical device for the veterans who gave a lot for our nation.”
Let’s applaud the Lone Star State for this important work that honors our veterans who gave so selflessly.
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