The Texas Supreme Court recently upheld the state’s smokable hemp ban. This is bad news for the smokable hemp industry inside and outside of Texas. Today, we’ll look at what happened.
As our readers know, the federal 2018 Farm Bill classified “hemp” as an agricultural product and removed hemp from schedule I of the federal Controlled Substances Act. The Farm Bill authorized states to develop their own regulatory structure to govern hemp under the oversight of the U.S. Department of Agriculture. Texas moved swiftly to adopt its own regulations generally permitting the manufacture and sale of hemp products. Texas prohibited the “processing” or “manufacturing” of hemp-containing products for “smoking.” Pursuant to this law, the Texas Department of State Health Services adopted a rule prohibiting the same.
A group of hemp businesses sued the Department seeking a declaration that the ban on smokable hemp violated the Texas constitution’s guarantee that “[n]o citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.” (the “due course clause”). The hemp businesses argued the ban on smokable hemp was unconstitutional because it had “no rational