Texas Appeals Court Allows Smokable Hemp to be Sold, Not Cultivated, Amending Trial Court’s Injunction

Last Thursday, the Texas Third Court of Appeals affirmed in part and reversed and remanded in part the trial court’s temporary injunction enjoining the enforcement of a state ban on manufacturing and processing of consumable hemp products used for smoking hemp in a lawsuit against the Texas Department of Health Service’s case initiated by smoking and vaping companies. This ruling means that smokable hemp can now be sold in Texas if it is produced and manufactured outside of the state.

In 2019, Texas passed a law stating that “a state agency may not authorize a person to manufacture a product containing hemp for smoking,” and in 2020 the state added to this provision that “the manufacture, processing, distribution, or retail sale of consumable hemp products for smoking is prohibited.” 

In response, four hemp companies filed a lawsuit, seeking injunctive and declaratory relief, for the laws to be ruled unconstitutional, and for the court to revoke the ban on manufacturing and selling hemp products. The trial court issued a temporary injunction that enjoined the enforcement of the ban of the manufacturing and processing of these products, which the Texas Department of Health Services claimed was an abuse of its discretion.

The court noted that Section 443 of the law states “a person may possess, transport, sell, or purchase a consumable hemp product processed or manufactured in compliance with this chapter” and that “the use of the word ‘may’ grants permission.” Therefore, the implicit ban on these same processes should not be allowed, and the trial court was correct in issuing the injunction. 

However, the court also determined that the Hemp Companies never provided “‘a plain and intelligible statement of the grounds’ to enjoin the enforcement of rule 300.104’s bans on manufacturing and processing consumable hemp products for smoking” and agreed with the Department, reversing this part of the injunction.

The Department of Health Services is represented by the Texas attorney general’s office and the plaintiffs are represented by the Law Office of Susan Hays PC and Yetter Coleman LLP