Hemp and all products derived from, such as CBD, were legalized by the federal government through the Farm Bill 2018. To implement these laws at the state level, Texas state Governor Greg Abbott signed the House Bill 1325 into state law last summer. This authorized the production, processing, manufacturing, distribution, inspection, and sale of industrial hemp and hemp-derived products in Texas.
The House Bill 1325, together with the 2018 Farm Bill, helped in clearing the way for registration and license holders of consumable hemp-extracted CBD products, such as Texas Tonix, to offer consumers premium hemp-derived CBD products that boost health, wellness, and the overall quality of life.
However, the Texas Department for State Health Services (DSHS) later announced that the distribution and retail sale of smokable hemp-derived products had been barred by Texas code 30.104. This Code prohibited every Texan from distributing or selling smokable hemp products such as vape cartridges and pre-rolls. The Code banned wholesale distribution, face-to-face sales, and in-store sales.
Code 300.104 also required Texas e-commerce hemp retailers to register with the state authorities for them to continue dealing in consumable hemp-derived products within Texas. The DSHS also made it clear that well-labeled and tested hemp flower that is marketed for purposes other than the production of smokable products did not fall under Code 300.104. Companies can, therefore, not market their hemp products in a manner that portrays intent to smoke.
The Code was officially effected on August 2, 2020, despite opposition from thousands of players in the hemp industry.
Opposition to the Ban
Hemp and CBD have been proven to have multiple health benefits and the potential to improve quality of life. These products have been used to successfully treat and alleviate pain and diseases such as anxiety, arthritis, seizures and cancer-related symptoms, among others.
Due to hemp’s undisputable benefits, DSHS received thousands of comments, letters, and emails from hemp growers and distributors, all opposing Code 300.104. Their major reasons for opposition were:
- Many individuals rely on smokable hemp products to relieve and manage medical conditions.
- The ban would significantly impact hundreds of Texan businesses that were already dealing in the banned products
- Code 300.104 was unconstitutional under the Texas Farm bill – House Bill1325
The Court Battle
Four Texas hemp companies sued to overturn the state’s ban on the production, manufacture, distribution, and sale of smokable hemp-derived products. These CBD companies submitted multiple claims that the ban on Smokable Hemp-extracted products would negatively impact the Texas economy and people’s health.
The June 2020 Texas ban on smokable hemp-extracted CBD products took a new turn in mid-September when a state judge barred state officials from imposing prohibition until the industry challenge is heard in court.
The four hemp growers that took the matter to court are suing the state for the ban. The ban on smokable CBD was imposed when the hemp legalization bill was passed last year by the state’s lawmakers. The bill explicitly banned the production of CBD products intended for vaporization or smoking.
Early this year, health authorities in the state extended the reach of the bill prohibiting the distribution and sale of smokable hemp products made across Texas borders. Hemp growers and companies have called upon the court, claiming the actions taken by the authorities was unconstitutional.
In the ruling dated September 17, 2020, Travis County Judge Lora Lavington ruled that the argument raised by the hemp growers and companies had some legal weight. The learned judge wrote that the plaintiffs “have demonstrated a probable right to relief” before granting them a temporary injunction voiding the CBD Texas ban on the manufacture, distribution, and sale of smokable hemp products.
The injunction is valid until the conclusion of the trial, which is set to commence in February 2021.
The same court had issued a temporary restraining order in August, which had similar but short-term effects, in which the state health authorities were restrained from enforcing the ban for about three weeks. Last month’s ruling was set to freeze the ban for not less than 4 months as this court battle could potentially take longer.
Those opposing the ban are optimistic that although the injunction does not entirely offer a solution, the judge’s recent ruling is a positive sign that the challenge could succeed.
Texas CBD advocates have remained vigilant, with both regulatory oversight and legislative engagement. This is evident as businesses in Texas are now challenging poorly drafted policies in open courts, and they are definitely winning!
According to Heather Fazio, the director of Texans For Responsible Marijuana Policy, the ruling relating to the suit is so far encouraging. His company opposes the ban and has managed to organize hundreds of the suit’s supporters to submit their comments to the regulators.
The Plaintiffs moved to court to challenge both the Department of State Health Services (DSHS) ban on distribution and sale, as well as the legislature’s initial ban on the production of smokable hemp-extracted CBD products. The plaintiffs jointly claim that the ban violates Texas’ constitutional provision and protection of economic freedoms. They also claim that DSHS did not have the authority to extend the ban on production to distribution and retail sales.
The plaintiff’s submissions also speak to logistical problems arising from the ban. Since smokable hemp is literally indistinguishable from hemp flowers grown for other purposes, the companies argue that dishonest business actors will be encouraged to mislabel their products to avoid the ban. Such a practice could potentially put the consumers at the risk of exposure to chemicals not intended for human consumption.
By banning smokable CBD, Texas would suffer a huge blow economically. Texas hemp businesses argue that with the ban in place, they will not be in a position to compete favorably with companies from other states, which can produce, distribute, and sell everything from hemp vape cartridges to hemp joints.
“Since the law has not banned the consumption of smokable hemp-derived CBD products, Texas consumers can alternatively buy these same products from different states,” the plaintiff’s submission reads. “If Texas bans the production of cheese today, Texans will not quit eating cheese.”
The legalization of hemp for various purposes in the state has been causing headaches within the criminal justice department. Hemp smells and looks similar to cannabis, and law enforcement agencies cannot tell whether they have a banned substance or not until a chemical test is conducted.
However, state substance testing labs have been overburdened. The Department of Public Safety announced early this year in February that their labs do not have the capacity to run tests for misdemeanor cases. State prosecutors have since dismissed countless cannabis misdemeanor cases. Cannabis possession arrests have dropped by 30 percent between 2018 and 2019, according to state data. This trend has been linked to hemp legalization.
Texas Tonix
While legislations are bound to constantly change, Texas Tonix continues to deliver its consumers a premium selection of both smokable and non-smokable CBD products such as lotions, tinctures, edibles, raw flowers, pet treats, and much more! All of our hemp products are 3rd party lab tested and certified to ascertain that you receive the best CBD supplements for yourself or your pet. Shop in-store or online from Texas Tonix.