Texas smokeable hemp lawsuit leaves sales in legal limbo amid ongoing court battle
Hemp industry navigates back-and-forth over THC
It's been a back-and-forth week in the legal battle over smokeable hemp. The state is currently appealing a court ruling which would keep those products on the shelves. FOX 7 Austin's Marco Bitonel spoke with those representing the hemp industry who believe they've provided more than enough evidence to have the court side in their favor.
AUSTIN, Texas - The back-and-forth battle over the legality of smokeable hemp in Texas continued this week.
The state is currently appealing a judge’s ruling that would keep those products on shelves, but representatives of the hemp industry say they’ve provided more than enough evidence for the courts to side in their favor.
What we know:
On May 1, the hemp industry took a major step forward when a Travis County judge extended the pause on the smokeable hemp ban until July.
It didn’t take long for the Department of State Health Services (DSHS) to respond. The weekend following the ruling, flower and other smokeable hemp products remained on shelves. But by Tuesday, DSHS had filed its appeal, making those products illegal to sell once again.
What they're saying:
"For an hour or two, we were very, very happy, but we always knew the state could file an appeal," said Melanne Carpenter, a plaintiff in the lawsuit and owner of Serenity Organics in Missouri City.
"We knew it was coming because when the state appeals, it automatically suspends enforcement of the judgment," said Amanda Garrett Taylor, lead appellate counsel for the Texas Hemp Business Council.
Dig deeper:
As part of the state’s appeal, DSHS rules became enforceable again. But hemp industry representatives quickly responded with an emergency motion.
"We knew that as soon as the state appealed, we would need to be ready to go," said Garrett Taylor. "We have to be, this industry is too important."
Local perspective:
On Thursday, the 15th Court of Appeals approved that emergency motion, reinstating the pause on enforcement, at least temporarily. The court is expecting a response from DSHS by Friday.
For now, those products can once again be sold.
The rapid changes have been disorienting for both business owners and customers.
"It’s legal one day and illegal the next. It’s confusing for them, and it’s certainly confusing for us," said Carpenter.
Despite the uncertainty, she says she’s not giving up.
"We all started in this business because the state and federal governments said we could. And now, five or six years later, they’re coming back and saying, ‘Oh, no, we didn’t mean that.’ That’s very frustrating."
Big picture view:
As the hemp industry awaits the decision from the court, those representing them are confident they’ve proven just how damaging the enforcement of some of the state's regulations and "Total THC" calculations could be.
"We were able to cite affidavits and evidence to the court to let them know that these are not hypothetical problems or injuries, but very, very real and significant economic harms happening every day to Texas businesses across the state," said Garrett Taylor. "Texas's consumable hemp industry provides nearly an $11 billion positive impact to the state in sales revenues, jobs and wages, all of those types of positive benefits that we want. That's what's on the line. An $11 billion industry, small businesses, people who have invested their life savings to run these businesses that are supporting their families."
The temporary injunction on the smokeable hemp enforcement will stay in place until DSHS gives its response to the court, which is expected by Friday. Once that happens, Garrett Taylor says they will quickly propose their own response and expect the court’s ruling shortly after. Garrett Taylor also claims that while the court is processing the filings, the temporary pause will remain, allowing business to operate free of the state’s new regulations.
"So if they need to take one or two weeks to review the filings, the businesses will be protected in the interim. But I do think that they'll rule relatively quickly," said Garrett Taylor.
What's next:
The dispute stems from regulations enacted by DSHS on March 31. One of the most controversial changes involves the "Total THC" calculation.
Lab tests now measure the total amount of THC a product could produce. If it exceeds the 0.3% threshold, it is considered illegal.
That includes products like THCA flower, which only surpass that limit when heated, making it one of the most debated items in the hemp industry.
The Source: Information in this article was provided by FOX 7's Marco Bitonel.