Smokeable hemp products, such as flower buds and rolled joints, are allowed back on shelves until the state’s appeal of a statewide ban on the sale of the drug is heard in court next Thursday.
The state’s 15th Court of Appeals granted a request by lawyers for the hemp industry to reinstate a temporary pause on the smokeable hemp ban until the appeal hearing, currently scheduled for May 17.
Lawyers for the state filed an appeal on Tuesday against Travis County Judge Daniella DeSeta Lyttle’s ruling last week, which extended the pause on the smokable hemp ban. The state’s 15th Court of Appeals agreed to hear the appeal Wednesday, putting the state’s rules that effectively bans the sale of smokeable hemp back into effect. Then, on Thursday, the appeals court granted the hemp industry a weeklong reprieve from the ban.
“We are very pleased that the Texas Court of Appeals did the right thing by reinstating the injunction,” said David Sergi, an attorney for the hemp industry. “The veterans, elderly, and the approximately 30,000 employees in our industry thank the court, and we look forward to obtaining a permanent injunction and protecting these businesses by embracing the governor’s vision as outlined in his veto message.”
This week’s decisions on smokeable hemp is the latest in a string of dizzying court actions that have ping-ponged the status of the drug’s sale in Texas.
The statewide ban on the sale of smokeable hemp was supposed to go into effect on March 31. After lawyers for the hemp industry filed a lawsuit asking to block the ban, a Travis County district judge on April 10 temporarily lifted the ban until May 1. Last week, Lyttle ruled to extend the ban until the next hearing in the district courts, scheduled for July 27, but because the 15th Court of Appeals agreed to considering the state’s appeal, the ban was back in effect. That ban only lasted for some hours until the appeals court allowed the sale for another week.
The Texas Hemp Business Council, Hemp Industry & Farmers of America, and several Texas-based dispensaries and manufacturers have been fighting the state’s new testing requirements that create a 0.3% total THC threshold that would effectively bar the sale of natural smokeable hemp products. The state also created a 3,000% increase in licensing fees for hemp retailers.
During the three-day hearing last week, lawyers for the hemp industry argued that the Texas Department of State Health Services overstepped its constitutional authority by rewriting the statutory definitions of hemp established by lawmakers in 2019.
“The Texas Legislature must answer to the voters of Texas; that is a fundamental check and balance of our constitution. Agency bureaucrats lack accountability to the people of Texas, which is why their authority is limited,” said Jason Snell, one of the attorneys for the hemp businesses.
Attorneys for the state argued in court that Texas law requires the health agency to prioritize Texans’ well-being in rulemaking, allowing them to implement new hemp regulations. The judge disagreed, saying the rules were doing irreparable harm to the industry.
“The Court finds that the purpose of a temporary injunction is to preserve the last, actual, peaceable, non-contested status that preceded the controversy,” said Lyttle.
Andrew Alvarado, an attorney representing the hemp industry, said Lyttle’s ruling upholds the separation of powers among government entities.
“Frankly, I think it’s a win for all Texans, because fundamentally, the Court confirmed that unelected officials and state agencies cannot impose rules that conflict with the will of the people,” he said.
See here for the previous update. The ruling that allowed smokable hemp to go back on the shelves as the appeal is adjudicated came in late on Friday. Not the best time to be in this business in Texas, but it could have been worse.