We previously wrote about a hemp industry case against the Texas Department of State Health Services, challenging the state legislature’s smokable hemp ban and the Department’s implementing regulations. Plaintiffs, Texas hemp producers and retailers, argued that H.B. 1325, which banned the in-state manufacture of smokable hemp, but not the possession, consumption, or importation of smokable hemp from other states, was unconstitutional because it was not rationally related to any legitimate government interest (smokable hemp could still be sold and consumed in the state, just not produced by Texas hemp businesses).
On August 23 Judge Livingston of Texas’ 261st District Court issued her ruling via letter to the parties, finding that the portions of the statute which prohibits “the processing or manufacturing of a consumable hemp product for smoking” (sections 443.204(4) and 122.301(b)) do in fact violate the State Constitution. The implementing regulation (Texas Administrative Code § 300.104), which Plaintiffs had challenged for exceeding the statute by also banning the distribution and retail sale of smokable hemp, was held to be invalid as well. The court granted a permanent injunction preventing the state from enforcing either. The judge’s letter does not include a rationale for the ruling and the state has not yet indicated whether it will appeal.
Plaintiffs had previously won a temporary injunction against enforcement of the bans, and have now secured an important victory allowing the Texas hemp industry its share of the booming smokable hemp market. This ruling may inspire challenges to smokable hemp bans in other states, such as Louisiana.
