The Texas Supreme Court has decided to take up the smokable hemp ban case from the decision of a district court that had ruled the Department of State Health Services ban on the product in those forms and manufacture was unconstitutional.
The court has requested to be briefed on the topic and is setting up for a hearing to take place in March of 2022 to decide the final say on the issue between 4 Texas companies and DSHS. Crown Distributing and three other companies including Dallas-based manufacturer America Juice Co. LLC, Austin-based retailer and manufacturers Custom Botanical Dispensary LLC and 1937 Apothecary LLC — sued the state agency in August 2020
In the 2019 legislative session, HB 1325 passed and legalized hemp in Texas under the 2018 federal farm bill guidance. The caveat was that no product could be made for smoking. This resulted in questions surrounding the validity of the hemp program as opponents of the language stated it put a ban on hemp altogether that the product in it harvesting form is smokable. It also resulted in DSHS creating what it believed were rules in line with the legislative language that would ban the retail sale of the product within the state borders.
DSHS admitted in court that this would not stop companies that manufacture and sell outside of the state, from selling to customers within the state as long as they did not sell it from a shop within the state lines. DSHS does not have full regulatory authority over hemp in Texas as the bill passed delegates authority to other organizations on specific matters as well, such as Texas Department of Agriculture.
“We’re very pleased that the supreme court will review the constitutionality of Texas’s smokable hemp statute and whether the Legislature went too far in regulating a product that is legal,” Constance Pfeiffer of Yetter Coleman LLP, representing Crown Distributing told Law360.
“This is an important case for Texas and the industry nationwide,” she continued.
The case has been back and forth through multiple hearings with temporary and permanent injunctions/restraining orders (orders the keep the status quo in place, which in this case is the sale of the items that was taking place before DSHS created its rules on consumable hemp) being put into place.
The companies are collectively represented by Shane Pennington of Vicente Sederberg LLP, Constance H. Pfeiffer and Matthew C. Zorn of Yetter Coleman LLP, Chelsie N. Spencer and Paul C. Stevenson of Ritter Spencer PLLC and Susan Hays.
The case is Texas Department of State Health Services et al. v. Crown Distributing LLC et al., case number 21-1045.
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