May 18, 2022

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A Texas appellate body Thursday issued mixed verdicts on a lawsuit challenging the state’s ban on smokable hemp. Regulators can enforce a ban on the processing and manufacture of products intended for smoking or vaporizing, the court ruled, but they cannot prevent such products made elsewhere from being sold in the state.

The decision creates a situation where consumers can potentially purchase smokable hemp flower and hemp-derived CBD oils for vaporizing freely, but only if the products are processed outside of Texas and imported into the state.

Four Texan companies challenged the ban in a lawsuit last year, called on the court to declare the restrictions unconstitutional and allow the legal manufacture and sale of hemp products for smoking or vaporizing. In response, a state judge the entire ban was put on hold last Septemberthereby preventing the government from enforcing them until the matter can be resolved in court. Thursday’s ruling changes this injunction.

in the ruling, a three-judge panel of the Third District Court of Appeal distinguished between the processing and manufacture of smokable hemp – which lawmakers strictly forbade if they did legalized hemp in 2019– and distribute and sell what the Texas Department of State Health Services (DSHS) regulators banned after a rule passed a year later.

In a letter to the panel, Judge Melissa Goodwin argued that the lifting of the sales ban was justified because the DSHS restriction went beyond the scope of the legislature’s manufacturing ban.

“Legislators required the ministry’s rules to reflect the principle that ‘the processing or manufacture of a consumable hemp product for smoking is prohibited’ but did not mention retail,” the ruling said. “Still, the ministry passed a rule banning not only the processing and manufacture of consumable hemp products for smoking, but also the distribution and retail sale of such products.”

But the appellate body also overturned part of the preliminary injunction that applied to the manufacture and processing of smokable hemp, which could ultimately lead to the continuation of this part of the state ban. Judges said the hemp companies did not provide a clear basis for this part of the injunction.

“Since the hemp companies have never provided a ‘clear and understandable justification’ to enforce the prohibitions of Rule 300.104 on the manufacture and processing of consumer hemp products for smoking, we conclude that the court uses its discretion in granting the temporary Grant has abused injunction and requires enforcement of that part of the rule, ”wrote Goodwin.

Lawyers for some hemp companies told Marijuana Moment on Friday that the rules for manufacturing and processing smokable hemp have not yet been clarified. They said that part of the ban is still being litigated and that further arguments are likely to be heard in the court.

Other proponents of wider legal access to cannabis products stressed the importance of the court’s decision to allow smokable hemp for sale in the state. However, they complained that state production of the products would become illegal.

“The lifting of the ban on the distribution and sale of smokable hemp products is a huge win for Texas farmers and hemp companies. It is extremely important that regulatory abuse is kept in check so that Texan companies are not prevented from competing in this market, ”Jax Finkel, executive director of the Foundation for an Informed Texas, told Marijuana Moment on Thursday. “I hope the manufacturing part of the suit leads to a similar opinion.”

Meanwhile, Susan Hays, an attorney who represents the hemp companies Custom Botanical and 1937 Apothecary, complained Law360 that the ruling will hinder fair-minded Texas-based hemp companies while allowing less regulated producers outside of the state to sell products to Texan consumers.

“It’s a shame the state continues to fight responsible, compliant smokable Texan manufacturers when out-of-state hemp products can be sold in Texas,” she said.

In Texas, where the legislature meets for a relatively short session every two years, cannabis reforms have come steady but rather slowly. Although bills were introduced earlier that year that would have lowered penalties for possession of concentrated cannabis, revised the state’s hemp program, and largely decriminalized marijuana possession, none made it across the finish line.

In June, Governor Greg Abbott (R) signed a bill to Modestly expand the state’s limited medical marijuana program, Cancer, and Post Traumatic Stress Disorder (PTSD) added to the state’s list of qualifying conditions. It also doubled the allowable concentration of THC from 0.5 percent to one percent. (A House-approved version raised the THC limit to five percent, but the provision has been watered down in the Senate.)

Separate laws that oblige the state to do so therapeutic value of psychedelics like psilocybin, MDMA, and ketamine for military veterans was passed by law and went into effect without the signature of the governor.

Activists also urged Abbott Support further cannabis reforms during the state’s special legislative session That summer, however, that plan was abandoned after the governor failed to put the issue on the agenda and the state Democrats left the state to protest the sweeping Republican electoral review law that would make it harder for residents to vote .

In the meantime, a new group is planning Carry out nationwide voting initiatives to be reformed at the local level. Unlike many other US states, Texas does not have a nationwide citizen initiative process.

Major metropolitan areas of the state, such as Austin and Dallas, have already independently enacted law enforcement policy changes that reduce penalties for marijuana offenses, such as issuing subpoenas and subpoenas rather than criminal charges.

According to polls by the University of Texas and the Texas Tribune earlier this year, a large majority of Texans support even broader reform. Sixty percent of the state’s voters supports the legalization of cannabis “for all uses”, signal that local initiatives would likely easily pass for more humble proposals like decriminalization.

A recent poll published in June by the University of Texas and the Texas Tribune found that almost Nine out of ten voters say marijuana should be legal in some form, with only 13 percent of the opinion that possession of cannabis should be illegal under all circumstances.

Senate committee calls for a rethink of the THC limit for hemp and pushes the CBD regulations forward

Correction: An earlier version of this story inaccurately described the consequences of the Court of Appeal’s ruling on the manufacture and processing of smokable hemp intended for smoking or vaporizing. The court’s annulment of this part of the preliminary injunction was due to a pleading error on the part of the plaintiffs, not a decision by the court on the merits. Weed company lawyers say they intend to challenge all remaining parts of the ban, which they believe is unconstitutional. An earlier headline also referred to the “cultivation” of smokable hemp, which is not the subject of the lawsuit.

Photo courtesy of Kimberly Lawson.

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