Just a few days ago the Texas Court of Appeals published an opinion concerning smokable hemp. Before getting into the ruling, let’s review what happened in Texas after enactment of the 2018 Farm Bill.
In 2019, the Texas Legislature enacted statutory provisions regulating certain hemp products. Among the statutes was a law prohibiting any state agency from authorizing a person to manufacture a product containing hemp for smoking. The legislature also directed the Department of Health Services (the “Department”) to adopt rules and procedures to administer and enforce these statutory provisions, including the one concerning the manufacture of products containing hemp for smoking.
In 2020, the Department adopted rule 300.104, which provides “The manufacture, processing, distribution, or retail sale of consumable hemp products for smoking is prohibited.” So Rule 300.104 operates as a ban on smokable hemp products in Texas.
Several hemp companies (“Hemp Companies”) filed suit against the Department alleging two claims for declaratory relief. (See here, here, and here for background on claims for declaratory relief). In the first claim, the Hemp Companies asked the court to declare that the statute banning the processing and manufacture of hemp products is unconstitutional. In the second claim, the Hemp Companies