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Hemp lawsuit

This ought to be interesting.

New rules prohibiting the retail sale and distribution of “smokable” hemp products are unconstitutional, companies argue in a lawsuit filed Wednesday in Travis County.

When Texas legalized hemp last year, the legislation explicitly outlawed manufacturing and processing hemp products meant to be smoked. But rules released Sunday defining the state’s hemp program also banned the sale of these products.

That cut off a major source of income for many small businesses that sell hemp in Texas.

[…]

The lawsuit argues the ban of manufacturing and processing smokable products enacted as part of the law is unconstitutional and that the ban on distributing and selling these products is not valid.

Jax Finkel, executive director of the Texas Chapter of the National Organization for the Reform of Marijuana Laws, said banning the sale of smokable products goes beyond the intent of the bill.

You can see a copy of the lawsuit here. There’s a more detailed story here.

In a lawsuit filed in Travis County District Court on Wednesday, the companies are asking a judge to declare the ban unconstitutional and allow hemp products intended for smoking or vaping to be produced and sold legally across the state.

“At a time when the Texas economy is reeling from the fiscal impact of COVID-19, it is unfortunate that the State chose to foreclose such a large economic opportunity for our state and instead chose to force long-standing Texas businesses and jobs across the border to neighboring states, such as Oklahoma,” said attorney Chelsie Spencer, counsel for lead plaintiff Crown Distributing LLC.

“Crown Distributing, which manufactures the popular Wild Hemp brand of smokable products, stands to lose $59.6 million in revenue over the next five years if the bans are upheld,” Spencer told Marijuana Moment in an email. “The state of Texas stands to lose $2.9 million in sales tax revenue alone.”

Texas legalized hemp in 2019, in large part to capture a piece of an industry that is booming following the federal legalization of the crop through the 2018 Farm Bill. Hemp, a category of cannabis that contains less than 0.3 percent THC, has a variety of uses: Its seeds are a nutritious food source, its fibrous stalks can be made into textiles or building materials and its flowers can produce a variety of cannabinoids, most notably cannabidiol (CBD).

Texas’s hemp law as passed by the legislature specifically prohibited the manufacture of hemp products intended for smoking or vaping, though it left open the door for selling products made out of state. But a year later, regulators at the Texas Department of State Health Services (DSHS) issued rules extending that ban to forbid the retail sale of any smokable hemp products. That restriction took effect on Sunday.

Plaintiffs in the lawsuit argue that both those provisions should be overturned. The state legislature’s ban on processing and manufacturing smokable products violated the state constitution’s protection of economic freedom, they say, while DSHS lacked the authority to extend lawmakers’ ban to include retail sales.

“DSHS characterizes banning distribution and retail as ‘a logical extension’ of banning manufacturing,” the lawsuit says. “But even if this were true (it is not), agencies have no authority to enact rules that they deem to be a ‘logical extension’ of law.”

[…]

“If allowed to move forward, these bans on smokable hemp products will shutter businesses across the state, resulting in a loss of jobs and tax revenue,” the companies said in their complaint. “They impede the economic liberty of Texas businesses, pose an existential threat to Texas hemp manufacturers, farmers, and retailers, and are sure to stifle growth of a budding Texas industry.”

As for the ban on producing and manufacturing smokable hemp products, the companies say it violates the state constitution’s protections against arbitrary economic restrictions.

“There is no plausible law enforcement benefit from banning the Texas manufacture and processing of smokable hemp products,” the lawsuit argues. “Imposing an arbitrary constraint here is particularly perverse because 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.”

“Stated differently,” it continues, “if Texas had banned the processing and manufacture of cheese in Texas, Texans wouldn’t stop eating cheese.”

See here for more on the hemp legalization bill (HB1325), which has also had the effect of making it a lot harder to prosecute marijuana cases. I’d be very interested to hear what a lawyer thinks about this complaint. I’ll say that the bits quoted here sound a lot like political arguments, which were made during the discussion of the bill. Don’t get me wrong, I largely agree with those arguments, but that doesn’t mean they’ll have any purchase in a courtroom. Still, this could be interesting, and it may help push the broader legalization argument forward. Perhaps we’ll get another incremental bill this session; we are for sure not getting anything more ambitious than that as long as Dan Patrick is Lt. Governor. But there’s a lot of room for small steps, and who knows, maybe this will end up being a big one. I wouldn’t count on it, but you never know. Reform Austin and the Hemp Industry Daily have more.

It’s even harder to prosecute pot cases now

Such a shame.

What if lawmakers writing one of the most consequential laws to come out of last year’s legislative session, legalizing hemp in Texas, forgot to include a small, but crucial detail that could get your marijuana possession charges dropped?

That’s what happened last week, after a Brazos County court judge concluded the new law omitted a date typically included in state crime legislation. As a result, misdemeanor charges against a Texas A&M University student arrested on the day of his 2018 college graduation were summarily tossed.

The decision is the latest stumbling block that Texas’s nine-month-old hemp law has presented for police and prosecutors committed to pursuing low-level marijuana possession cases. Although the decision does not bind other judges, attorneys said the successful tactic had the potential to change the course of hundreds of pending cases across the state.

[…]

New state crime laws always include a clear dividing line, typically written as a date, said Shannon Edmonds, director of governmental relations for Texas District and County Attorneys Association. Before the date, the old law applies; after, the new law does.

Yet the hemp bill, which was passed through the Agriculture and Livestock Committee instead of the regular criminal justice panels, neglected to specify when the new pot definition started. A little-known provision of Texas law says that without clear transition instructions, if a new law lowers the penalty for a crime it can be applied retroactively.

The district and county attorneys association noted the missing language early on. “The law went into effect on June 10, 2019, but it is unclear whether it applies to previously-filed marijuana cases pending on that date,” it warned In a June letter to member prosecutors.

The bill’s sponsor, Rep. Tracy King, D-Batesville, did not return a call to his office seeking comment on the AWOL date.

Criminal defense attorneys noticed it, too, and began seeking cases to test if the new law could also be used to challenge older possession charges.

Long story short, they found a defendant in College Station who wanted to have his day in court, and their argument that the new law applied resulted in the dismissal of the case because the cops hadn’t tested the pot they said they found. Testing is another problem for prosecutors, and the DPS has said they don’t have enough money to handle the demand from the locals, leaving them in limbo. Which is fine by me. Let’s keep this natural experiment going and see for ourselves once and for all how little there is to fear from not being hardasses about weed.

Marijuana arrests stay down

We really should view this as the new normal, and not a problem to be “fixed”.

It’s been more than six months since Texas lawmakers legalized hemp and unintentionally disrupted marijuana prosecution across the state.

Since then, the number of low-level pot cases filed by prosecutors has plummeted. Some law enforcement agencies that still pursue charges are spending significantly more money at private labs to ensure that substances they suspect are illegal marijuana aren’t actually hemp.

The Texas Department of Public Safety and local government crime labs expect to roll out a long-awaited testing method to distinguish between the two in the next month or so. But that’s only for seized plant material. There’s still no timeline for when they will be able to tell if vape pen liquid or edible products contain marijuana or hemp. And DPS said even when its testing is ready, it doesn’t have the resources to analyze substances in the tens of thousands of misdemeanor marijuana arrests made each year — testing it didn’t have to do before hemp was legalized.

“If law enforcement agencies and prosecutors asked for all of those to be tested when these new procedures become available … DPS would start with such a huge backlog that it would likely never get caught up,” said Shannon Edmonds, director of governmental relations for the Texas District and County Attorneys Association. “One decision for prosecutors and law enforcement agencies and the labs is: How do they triage these cases to focus on the most important ones?”

[…]

In 2018, Texas prosecutors filed about 5,900 new misdemeanor marijuana possession cases a month, according to data from the Texas Office of Court Administration. The first five months of 2019 saw an average of more than 5,600 new cases filed a month. But since June, when the hemp law was enacted, the number of cases has been slashed by more than half. In November, less than 2,000 new cases were filed, according to the court data.

For those who support marijuana legalization, that change is welcome, adding to an already growing effort in some of the state’s most populated counties to divert pot smokers from criminal prosecution or not arrest them at all.

“It means that there are fewer Texans that are getting slapped with a criminal record for marijuana possession, something that is already legal in other states,” said Katharine Harris, a drug policy fellow at Rice University’s Baker Institute for Public Policy.

See here for the background. There’s no serious argument to be made that the drop in marijuana arrests has had any negative effect on public safety, but it has had the positive effect of keeping thousands of basically harmless people out of the criminal justice system. The main problem with the new status quo is that the reduction in prosecutions is completely ad hoc and not systemic. Whether one gets arrested and jailed or warned and released is entirely a function of where you are and which law enforcement agency is dealing with you. The Lege in 2021 needs to look at what has happened since this inadvertent loosening of marijuana laws and make it a real, permanent thing. We’ve already seem that nothing bad will come of it. Grits and the Current have more.

Did the Lege sort of decriminalize marijuana?

Well, sort of.

Because of a new state law, prosecutors across Texas have dropped hundreds of low-level marijuana charges and have indicated they won’t pursue new ones without further testing.

But the law didn’t decriminalize small amounts of marijuana for personal consumption. It legalized hemp and hemp-derived products, like CBD oil.

An unintended side effect of the law is that it has made it difficult for law enforcement to tell if a substance is marijuana or hemp, according to prosecutors. Among other provisions, House Bill 1325 changed the definition of marijuana from certain parts of the cannabis plant to those parts that contain a higher level of tetrahydrocannabinol, the psychoactive ingredient in marijuana that produces a high. It’s a difference numerous district attorneys, the state’s prosecutor’s association and state crime labs say they don’t have the resources to detect, weakening marijuana cases where defendants could claim the substance is instead hemp.

“The distinction between marijuana and hemp requires proof of the THC concentration of a specific product or contraband, and for now, that evidence can come only from a laboratory capable of determining that type of potency — a category which apparently excludes most, if not all, of the crime labs in Texas right now,” stated an advisory released by the Texas District and County Attorneys Association last month.

A spokesperson for the Texas Department of Public Safety, which runs more than a dozen state crime labs to conduct forensic testing, including drugs, for local agencies said it does not have equipment, procedures or resources to determine the amount of THC in a substance. Some involved in the hemp legislation have countered that there is already available equipment to test suspected drugs, even if it isn’t in most crime labs.

Still, top prosecutors from across the state and political spectrum — from Harris to Tarrant counties — have dismissed hundreds of pending marijuana charges since the law was signed by Republican Gov. Greg Abbott and immediately went into effect on June 10. They have also signaled they won’t pursue any new charges without testing a substance to indicate if there is more than 0.3% of THC, the now-legal limit to distinguish between hemp and marijuana.

“In order to follow the Law as now enacted by the Texas Legislature and the Office of the Governor, the jurisdictions … will not accept criminal charges for Misdemeanor Possession of Marijuana (4 oz. and under) without a lab test result proving that the evidence seized has a THC concentration over .3%,” wrote the district attorneys from Harris, Fort Bend, Bexar and Nueces counties in a new joint policy released Wednesday morning.

So basically, some counties are now refusing to accept low-level pot cases out of concern that they would not be able to prove them at this time; Harris County is one of them. Others will carry on as usual and see what happens, while DPS is now pushing to get the lab equipment they would need to adjust to this change. I think in the end that the prosecutors will figure out how to adjust to this, and at some point the lab equipment will catch up, so in a few months things will return more or less to normal. I mean, I’d be happy if they all just decided this was a better state of affairs and adopted the stance that this change was permanent. But that’s not going to happen.

Would pot be a cash crop?

The Trib takes a serious look at Kinky Friedman’s campaign platform.

Zonker

Currently, it is illegal to grow and possess marijuana in Texas and most other states, and while hemp is legal for consumption, Texas and most other states do not allow farmers to grow it.

Experts with experience in the legal pot industry in other states, though, say a host of regulatory and environmental factors could complicate any potential benefits growing marijuana might have in Texas.

States that have recently legalized marijuana growing, including Colorado and Washington, have just gotten started, so they are difficult test cases to assess. But in California, where medicinal marijuana cultivation has been legal since 1996 and is plentiful, many farmers say the crop hasn’t been as good for agriculture as Friedman has suggested.

Much of the problems farmers and scientists in California report stem from the fact that under federal law, the plant remains illegal, so states cannot legally regulate its growth as they do other crops.

“Without prohibition, you wouldn’t have this problem,” said Tony Silvaggio, an environmental sociologist at Humboldt State University in California, who has researched the effects of marijuana farming in California.

[…]

“We don’t know anything empirical about what happens when serious professional farmers are allowed to do this,” said Jonathan Caulkins, who has studied the economics of marijuana growth at Carnegie Mellon University’s Heinz College in Pittsburgh. But he suspects the price of marijuana would fall if it was mass produced, which could reduce its demand in the black market and reduce crime.

That doesn’t mean Texas farmers would benefit, though. Marijuana plants are difficult to harvest because the buds must be individually snipped from each plant. That work is labor intensive, and most farm workers today don’t have those skills.

The market for marijuana producers is also unlikely to get very big, Caulkins said, because it’s a high-yield crop. Only about 10,000 acres nationwide would be needed to satisfy the country’s demand, he said. If farmers grow more marijuana, they could oversaturate the market and drive down prices.

Hemp, on the other hand — which comes from the same plant as marijuana but has less THC, the chemical that produces a high — is easier to harvest, and demand in the U.S. is rising. Friedman has suggested that the first step to marijuana legalization is to allow Texans to grow hemp, which is used in a variety of products, from clothing and twine to edible seeds, protein powder and cosmetics such as moisturizers and essential oils.

Hemp has long been legal in Canada, but only a few hundred growers have licenses to produce there, Caulkins said. That doesn’t bode well for predictions of a hemp revolution in Texas that Friedman argues would occur if the state legalized growing it. A Congressional Research Service report on hemp last year came to a similar conclusion, noting that hemp crops can also cross-pollinate with marijuana crops. That means farmers growing hemp could suddenly find that their product has enough THC content to make people high, putting them in the crosshairs with the law — or that marijuana growers’ products would lose their potency.

Even if hemp and marijuana growth become possibilities for Texas farmers, it’s not clear that it would be a moneymaking enterprise. Those who profit most from agricultural production are typically at the end of the supply chain, like grocery stores or bakers, Caulkins said — not farmers.

“The people who are going to make money are going to be the bakeries that buy [it] … and put it into brownies,” he said.

I don’t know, given the local food movement these days, I wouldn’t underestimate the appeal of artisanal, locally-sourced reefers. It’s all in the marketing. Most of the problems cited in the story stem from the federal prohibitions against marijuana. That’s not something Texas can address directly, but just as action by cities tends to lead to a legislative response from the state, I expect that having more states legalize pot in some fashion will lead to changes in federal law. Attitudes about marijuana are shifting, thanks in large part to growing concerns about the cost of the War On Drugs. I won’t be surprised to see some kind of federal action, even if it’s strictly on the incarceration end, by the end of President Obama’s term in office. Texas could almost certainly accelerate that process if it reformed its marijuana laws, even if that just means accommodating medical marijuana. Nothing happens in a vacuum, and if the main obstacle to Kinky Friedman’s fondest dreams is the feds, there are things we can do to affect that.