Retailers can legally sell smokable flower and concentrates again after an appeals court paused the state’s restrictive THC rules, offering hemp businesses a temporary reprieve.
A statewide ban on the sales of smokable intoxicating hemp products that went into effect on March 31, only to be temporarily overturned by a Travis County judge two weeks ago, then reinstated last week, has now been blocked again—but only temporarily
Last Wednesday, the Texas 15th Court of Appeals agreed to hear the state's appeal, which reinstated the ban, effectively blocking the sale of smokable hemp flower, pre-rolls, and various concentrates. But late last week, that same appeals court granted a request from hemp industry attorneys to restore the temporary pause until a hearing on May 17.
"We are very pleased that the Texas Court of Appeals did the right thing by reinstating the injunction," said hemp industry attorney David Sergi. "The veterans, elderly, and the approximately 30,000 employees in our industry thank the court, and we look forward to obtaining a permanent injunction and protecting these businesses by embracing the governor's vision as outlined in his veto message."
This is just the latest fallout from Republican lawmakers' efforts to ban the sale of hemp-derived intoxicating cannabinoids statewide. After the legislature struggled and failed to pass legislation last year, Gov. Greg Abbott (R) issued an executive order in September that banned sales to minors and directed the Department of State Health Services (DSHS) and the Alcoholic Beverage Commission (TABC) to draft rules governing the sale of those cannabinoids.
The TABC and DSHS rules illegalized the sale of smokable hemp and some extracts by altering the way the state measures THC. Under preexisting state law, hemp was defined as cannabis containing less than 0.3 percent delta-9 THC by dry weight, but under the new rules, the state adopted a total THC standard, which includes not only delta-9 THC but also other intoxicating cannabinoids, including THCA. That wipes out smokable hemp products in the state.
A group of hemp industry players, including dispensaries, manufacturers, the Texas Hemp Business Council, and the Hemp Industry & Farmers of America, sued to block the new rules, arguing that they would effectively ban the sale of natural smokable hemp products. During hearings last week, plaintiffs also argued that DSHS acted unconstitutionally by rejiggering the statutory definition of hemp the legislature had established in 2019, after the 2018 farm bill legalized hemp nationwide.
"The Texas Legislature must answer to the voters of Texas; that is a fundamental check and balance of our constitution. Agency bureaucrats lack accountability to the people of Texas, which is why their authority is limited," said Jason Snell, one of the attorneys for the hemp businesses.
While attorneys for the state argued that state law requiring DSHS to emphasize public well-being allowed it to create the new hemp regulations, the judge in the case disagreed.
"The Court finds that the purpose of a temporary injunction is to preserve the last, actual, peaceable, non-contested status that preceded the controversy," said Travis County Judge Daniella DeSeta Lyttle.
That won praise from another hemp industry attorney, Andrew Alvarado.
"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," Alvarado said.
And so, the issue is settled—at least for the next few days. After that, stay tuned.