Texas Court Rules Ban on Smokeable Hemp is Unconstitutional

If you live in Texas or have been following our journey, chances are you’ve been confused by the constantly changing laws regarding smokable hemp. What is legal and what is not, and when does it all officially go into effect? We’re here to answer your questions and give you an overview of where things currently stand with smokable hemp in Texas.

Now, let’s dig in.

In 2019, Governor Greg Abbott signed H.B. 1325 into law, which legalized hemp in Texas and allowed farmers to grow and retailers like us, MARYJAE to sell hemp products with THC levels below 0.3%. Regarding smokeable products, H.B. 1325 states, “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.

In August 2020, the Texas Department of State Health Services began enforcing a ban on smokable hemp in Texas. Rule §300.104 stated, “The manufacture, processing, distribution, or retail sale of consumable hemp products for smoking is prohibited. The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency’s legal authority.”

Shortly after DSHS began their enforcement on smokable hemp, four hemp businesses filed a lawsuit against the Texas Department of State Health Services and its Commissioner, arguing the smokable hemp ban was unconstitutional and a government overreach. Judge Livingston of Travis County 261st District Court granted a temporary restraining order against the enforcement of smokable hemp until a ruling was made in the case.

Earlier this month, the District Court of Appeals ruled, “Regulators may enforce a ban on the processing and manufacture of products intended for smoking or vaping.” However, the court also ruled that products made outside of Texas could not be banned from retail sales. Texans could now legally purchase smokable hemp products, but the products must be manufactured outside of the state.

Confusing right? 

But… on Monday, August 23, Travis County District Court Judge Lora Livingston ruled in favor of the four hemp businesses who filed the lawsuit. Judge Livingston found the following to be unconstitutional: 

• 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.”

While it is expected that the Texas Department of State Health Services will appeal the ruling at some point (bc you know, they have to spend YOUR tax dollars), this is where the law currently stands in Texas on smokable hemp products. 

Did we lose anyone?  If so, we don’t blame you.

Want to chat more? Email us at Hello@shopmaryjae.com or come by our storefront located at 2110 S. Lamar Blvd, Suite E, Austin, TX 78704