Smokable hemp products, such as flower buds and rolled joints, are allowed back on shelves until the state’s appeal for a statewide ban on the sale of the drug is heard in court on May 14.
A statewide ban on the sale of smokable hemp was meant to go into effect on March 31, until lawyers for the hemp industry filed a lawsuit asking to block the ban, and shortly after, a Travis County district judge, Daniella DeSeta Lyttle, ruled to temporarily lift the ban.
Lyttle’s decision to extend the lift until the next hearing of the district court caused state lawyers to file an appeal against her ruling. The 15th Court of Appeals agreed to hear their appeal, putting the hemp ban back into effect.
The ban only lasted a few hours, however, until the appeals court decided to allow the hemp industry a weeklong reprieve from the ban. The 15th Court of Appeals has now granted the requests of lawyers for the hemp industry to reinstate a temporary pause on the smokable hemp ban until the appeal hearing.
One attorney representing the hemp industry applauds Judge Lyttle’s rulings as upholding the separation of powers among government entities, stating, “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.”
In a separate decision, the Texas Supreme Court upheld a prohibition on delta-8 THC, which has been off the shelves since 2022.
The Court justifies the ban because state law provides the state health agency with overarching authority to protect Texans. The state could evoke this ruling to justify the ban of any and all consumable hemp products, including delta-9 THC, which has taken over the hemp market since the delta-8 ban.
However, Katharine Neill Harris, a drug policy fellow at Rice University’s Baker Institute for Public Policy, claims that this ruling “doesn’t give the state power to prohibit any drug it wants.”
In 2019, Texas lawmakers legalized hemp with the Texas Farm Bill, defining hemp as containing less than 03% levels of delta-9 THC. To get around the law restrictions of delta-9, manufacturers began cultivating hemp plants with another type of THC, known as THCA.
Last year, the Texas legislature voted to ban the products; however, Governor Greg Abbot vetoed the decision, instead choosing to increase regulations and restrictions on the hemp industry.
Under these new restrictions, certain popular THC products such as THCA flower and pre-rolled joints were banned. The hemp industry testified to economic disadvantages due to the regulations, which were affecting small businesses, farms, and the hemp industry as a whole.
Now, the state health agency has redefined hemp in accordance with a federal law from last November, which clarified that hemp cannot contain total amounts of any type of THC, not just delta-9, that is more than 0.3% of its dry weight.
This federal ruling effectively bans smokable hemp on a national level but does not go into effect until next November and is still widely contested in Congress. Efforts are being made to alter the ban or allow states to opt out of following the new definition.
Either way, Texas state lawmakers want to be in compliance with this new definition early on, which is one of the reasons for their upholding of the delta-8 THC ban and potentially implementing the smokable hemp ban in court this Thursday.