The Texas Supreme Court heard arguments March 22 in a case addressing the state’s ban on making and selling smokable hemp, including products like hemp flower and CBD vapes.

The legal battle started in late 2020 when the Texas Department of State Health Services initiated the ban. It was subsequently challenged by four hemp companies.

The high court is tasked with reviewing an August ruling establishing that smokable hemp could be legally grown and sold in Texas, and that the state’s ban on production and sale of smokable hemp was unconstitutional. The state’s health department filed for the appeal in December, though many in the hemp industry also encouraged the state Supreme Court’s review, seeking clarity on the law.

During Tuesday’s oral arguments the Solicitor General for the Office of the Attorney General, Bill Davis, contended that smoking isn’t hemp’s intended use and could have public health consequences.

“Regulating the manufacture of hemp for smoking is a bit like regulating the manufacture of paint for inhalation, or paint thinner for inhalation, or laundry detergent for eating,” he argued on behalf of the state health department.

He argued that the ban on smokable hemp isn’t oppressive because it allows companies to manufacture hemp products for purposes other than smoking, or to sell them to processors in other states who can make them into smokable products.

Constance Pfeiffer, the attorney representing the hemp companies, argued that it is legal to grow and process smokable hemp in Texas.

“Since 2018 it’s been legal to use flower to make smokable hemp,” Pfeiffer said. Davis later rebutted this point, saying the state hadn’t changed its Controlled Substances Act until April 2019, and legislators put prohibitions on smoking shortly thereafter.

Pfeiffer also pointed out that the health department hadn’t proposed age restrictions or other measures to mitigate the end use of smoking. Instead the impact of the health department’s ban, she argued, would be to drive hemp companies out of Texas only to make smokable products and ship them back into the state for sale.

“[The state health department] can’t tie those rationales to the way it’s gone about restricting economic activity,” Pfeiffer said. “That’s the fundamental problem.”

If legislators had banned all smokable hemp, Pfeiffer said her clients would not have pursued the legal challenge.

“All manufacturers should be able to produce smokable hemp,” Pfeiffer said. “… The smokable hemp product is one of the highest margin products. And without being able to manufacture and process that, these companies can’t stay in business.”

Davis argued that the state’s health department was seeking the court’s approval based not on lawmakers’ intent, but on the idea that it would benefit Texans.

“The rational basis standard is an objective standard,” he said. “It doesn’t ask courts to look at what legislatures really had in mind. It asks courts to look to see if there is a rational basis for doing something good for Texans, and if the provision furthers that to some extent, even if not completely. That’s the standard that applies here.”

The attorneys expect a decision from the court this summer, reports Marijuana Moment.

Timeline: Smokable Hemp in Texas

2018 — U.S. legalizes hemp at federal level with the 2018 Farm Bill.

2019 — Texas legalizes hemp, but not for smoking. Lawmakers specifically prohibit the processing and manufacture of smokable hemp.

August 2020 — Based on its interpretation of the 2019 legislation, the Texas Department of State Health Services decides to restrict distribution and sales of smokable hemp, effective August 2020.

2020 — Four Texas companies challenge the health department’s ban, asking a district court to declare the restrictions unconstitutional and to allow manufacture and sale of smokable hemp products.

September 2020 – August 2021 — As the lawsuit makes its way through the court of appeals, production and sales of smokable hemp are allowed throughout the state.

August 2021 — August 5, an appeals panel rules that Texans can legally buy smokable hemp products. However, the panel of justices uphold the ban on growing and processing hemp that’s intended for smoking or vaping. (People could buy it legally but it couldn’t be made in the state.)

August 2021 — August 23, a judge in state district court rules that the ban on production and sale of smokable hemp is unconstitutional.

December 2021 — December 3, Texas Department of State Health Services files notice of appeal with the Texas Supreme Court. The court accepts the case Dec. 17.

March 2022 — Texas Supreme Court hears oral arguments in the appeal.