AUSTIN, Texas (CN) — Texas’ ban on manufacturing smokable hemp products is in accord with its long history of regulating cannabis, the state Supreme Court ruled Friday, so there is no vested right to this business endeavor under the Texas Constitution.
The history of hemp in America goes back to the Founding Fathers. George Washington grew large crops of it at his farms in Mount Vernon, Virginia, and used its fibers to repair his fishing nets.
Colonists made rope, clothing, ship sails and numerous other goods from it.
But in the early- and mid-20th century the federal government and U.S. states, cracking down on the growing popularity of ingesting marijuana – the flowers of hemp plants that contain the intoxicating compound THC – passed statutes barring use of marijuana.
Both marijuana and hemp derive from the cannabis plant. The laws differentiated the two, defining hemp as the plant’s mature stalks and exempting it from prohibition.
But President Richard Nixon’s signing of the Controlled Substances Act in 1970 effectively banned hemp production because it prohibited substances containing any THC, whether considered marijuana or hemp.
Hemp came full circle in 2018 with Congress’ passage of the Agricultural Improvement Act, also called the Farm Bill.
The Farm Bill distinguishes marijuana from hemp by the latter’s low amount of THC and allows farmers to grow hemp.
It also authorized transport of hemp-based products across states lines for commercial purposes, and sale and possession of them with no restrictions. But it also give states leeway to devise their own hemp-regulation schemes.
Taking the feds’ lead, the Texas Legislature passed HB 1325 in 2019, authorizing the licensed cultivation of hemp and barring local governments from regulating the industry.
The Farm Bill opened the floodgates for entrepreneurs’ production of goods containing CBD, a chemical derivative of the cannabis plant that does not produce the intoxicating effects of THC.
CBD is said to have many health benefits, providing relief for seizures, pain, anxiety, depression and insomnia. U.S. companies now incorporate CBD in a wide range of products—tinctures, lotions, chocolate bars, gummies, chap sticks, bath bombs and oils for dogs, cats and people.
Some of the most popular forms of consuming CBD-containing hemp is via smoking cigarette-like tubes and vape cartridges.
But Texas’ bill directed the state’s health and human services commissioner to adopt a rule effective August 2020 stating, “The manufacture, processing, distribution, or retail sale of consumable hemp products for smoking is prohibited.”
Four companies quickly sued, led by Dallas-based affiliates Crown Distributing LLC and America Juice Co., makers of Hempettes, which are sold under their Wild Hemp brand in packaging identical to cigarette packs and marketed as “the first cigarette-styled CBD pre-roll in the world.”
After blocking the law with an injunction, a state district judge in Austin issued a final judgment last November declaring it unconstitutional and blocking enforcement of the rule barring production and sales of smokable hemp products.
Texas appealed to the state Supreme Court, which heard arguments in March.
The state’s attorney argued the ban is justified due to Texas’ interest in preventing residents suffering health complications from smoke inhalation.
Crown Distributing and America Juice Co.’s counsel, Constance Pfeiffer of the Houston firm Yetter Coleman, countered the ban makes no sense because the Dallas-based plaintiffs merely had to move some of their operations to Oklahoma “where they can lawfully manufacture and process hemp and ship it right back into Texas.”
In a unanimous decision, the all-Republican Texas Supreme Court sided with the state Friday.
Justice Jeff Boyd rejected the hemp companies’ argument that the Texas Constitution’s due-course clause protects their right to produce smokable hemp wares as a common and lawful occupation.
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