(A version of this story first appeared on Hemp Industry Daily.)
Four Texas hemp companies on Tuesday asked the state’s high court to throw out a statewide ban on smokable hemp and preserve their ability to peddle a product with booming demand.
The state Supreme Court heard arguments that Texas lawmakers went too far in 2019 when they legalized hemp production but banned companies from turning hemp into smokable-flower products.
Texas’ smokable hemp ban has not been enforced to date.
The four companies sued over the ban in 2020, when Texas health authorities released the rules that banned the manufacture or sale of smokable hemp.
A lower judge put the rules on hold until the lawsuit could be resolved.
The case will determine whether hemp producers in the nation’s second-most-populous state can access a sector that could generate $400 million in annual sales by 2025.
The hemp businesses say the ban on processing and manufacturing hemp products for smoking in Texas is unconstitutional and that a provision banning the distribution and retail sale of hemp products is invalid.
When the case went to Texas’ Supreme Court on Tuesday, the lawyer for the hemp companies, Connie Pfeiffer, argued that the 2018 Farm Bill passed by Congress made hemp flower legal as long as it does not exceed .03% THC.
She also contended that Texas is trying to ban a federally lawful business.
“Ever since 2018, it has been legal to make smokable hemp,” Connie Pfeiffer argued.
On the other side, a Texas lawyer argued that the state should be free to regulate a product that “could have clear health consequences.”
“Regulating the manufacture of hemp for smoking is a bit like regulating the manufacture of paint for inhalation or laundry detergents for eating,” Bill Davis contended.
Pfeiffer pointed out that Texas officials didn’t try to ban using smokable hemp, just manufacturing it.
She pointed out that some Texas hemp companies have bought land “right across the border in Oklahoma” in case the ban is upheld, making the government’s health argument pointless.
“Statewide it is legal to use this product,” she said.
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A decision from the nine-member Texas court is expected by this summer.
In 2020, analytics giant NielsenIQ projected the smokable-hemp market in the United States would grow to $300 million-$400 million by 2025.