Texas Supreme Court upholds Smokable Hemp Ban

The Texas Supreme Court has upheld a state ban on processing and manufacturing hemp products for smoking.

In a decision released Friday, the state’s highest court determined that the Department of State Health Services can enforce its ban on processing and manufacturing hemp products for smoking. But it cannot enforce the ban on retail sale or distribution.

The primary plaintiff in the case, Crown Distributing, manufactures hemp cigarettes in Dallas. This ruling will end their ability to continue manufacturing in Texas. It’s anticipated that they could move to a more business friendly state, like Oklahoma.

Unfortunately, since its inception, Texas’ hemp industry has been cut down at the knees at every step. Today’s ruling will only harm businesses who are trying to do things by the book, as the ambiguous nature of the ban will lead to an environment of purposefully mislabeled products.

Moving ahead, here’s what you should know about the smokable hemp products ban:

What does the ban say?

The official language of the ban states: “The manufacture, processing, distribution, or retail sale of consumable hemp products for smoking is prohibited.” (source) (Distribution and retail sale ban is eliminated by SCOTX, so it is struck through in this article.)

Where is the ambiguity?

The ambiguity comes in the fact that the law does not dictate that products must be labeled or marketed with a purpose. In response to public comments in summer 2020, DSHS stated in writing:

“Properly tested and labeled hemp flower, marketed for use other than smoking (e.g. as a tea or a food additive) does not fall under the retail ban contained in §300.104.”

When the ban first took effect and before an injunction was had, manufacturers began relabeling products to remove all references to smoking. For example, one of the biggest names in CBD, American Shaman, relabeled their pre-rolls as “herbal tea sticks.”

Because the regulations do not dictate a product must be labeled with a purpose nor does it require a seller to know how their customer intends to use the product, the ban becomes much harder (if not impossible) to enforce if the label omits any language related to smoking.

What action should you take?

Retailers / Distributors – You don’t have to change anything. The ban no longer covers retail and distribution. Therefore, you do not need to worry about changing labels or removing products from your shelf. You can continue to procure and sell these products, and your customers are protected in having them on their person.

Processors / Manufacturers – You should confer with your attorney. If you run an operation that manufactures pre-rolls and hemp cigarettes, you’re at a higher risk of enforcement. Although you could just change your labels, it’s not clear where the bar sits for DSHS to bring action. If you’re manufacturing pre-rolls and labeling them “herbal tea sticks,” will that hold up in court if DSHS brings action against you? We just don’t know, for sure. Again, there is nothing in the law that dictates a label must provide the purpose of the product. So if you omit a purpose altogether and feign ignorance to the customer’s end use, would that hold up under scrutiny? Your attorney will provide the best answer as to what you should or shouldn’t do.

Farmers – If you are packing your product on-site, such as 1/8th oz jars, then be careful about not making any reference to smoking on your labels. Whole hemp flowers not labeled for smoking are still legal in Texas. Again, if you are using equipment to manufacture pre-rolls, you should confer with legal counsel to determine if omitting “for smoking” from the label will provide enough protection from the ban. You may still sell bulk whole hemp flowers. No regulation dictates you must know how your customer will use the product. Trimming, drying and curing flowers is all necessary to a harvest and is not always an indication that the flower will be used for smoking. Some growers send hemp flowers in for pressing and extraction.

What is Texas Hemp Growers doing about this?

THG anticipated this outcome and formed the first Political Action Committee for hemp in Texas, so that we may take definitive action in the upcoming state session.

Because the problem was created by the legislature, it will have to be fixed by the legislature. The THG PAC will work closely with members of the state house and senate in the 2023 state session to strike the smokable hemp ban from the law and fix other key issues, such as the lack of funding to the Texas Department of Agriculture.

If you can support this mission, we are seeking donations to help send our PAC members to Austin to work with lawmakers. Please contact us to make a donation to the PAC.

Can I import smokable hemp products from other states?

Yes! The bizarre nature of this ban is that products can be manufactured in another state and sent back into Texas to be distributed and sold.

Where can I read the SCOTX opinion?

A copy of the opinion is found here. You can also read an analysis of the court’s opinion here, which involves the “due-course” clause of the state’s constitution, if you’re interested in the finer details.

Who can I contact if I have more questions?

You may contact us at 833-HMP-FLWR. We’ll be happy to answer any questions we can. If we can’t answer them, we may refer you to an attorney.