Texas’ Smokable Hemp Ban: Temporary Restraining Order Granted Against the State

Update: The District Court has entered an order extending the temporary restraining order enjoining DSHS from enforcement of its ban against smokable hemp in Texas until the hearing on our application for temporary injunctive relief on September 14, 2020.

Four Texas companies are suing to overturn Texas’ ban on the manufacture and sale of smokable hemp products, which they warn will shut Texas companies out of a multibillion-dollar industry and lead to inaccurately labeled products on store shelves. Today these companies (the plaintiffs) and their attorneys participated in a temporary restraining order (TRO) hearing today in the Travis County 261st District Court. Judge Livingston presided over the hearing. Both sides conferred to see if they could come to an amicable resolution on the TRO. They could not reach an agreement so they went on to make their arguments.

The plaintiffs argued that this is a distinct case of governmental overreach. They started by explaining the difference between legal hemp and illegal marijuana as well as the difference between the two bans they are discussing (manufacture ban is statutory and retail ban is regulatory). The plaintiffs’ attorney argued that the retail ban is ultra vires which would cause harm such as having to close retail businesses or manufacturers having to move their sites to other states like Oklahoma. If the TRO is not granted, the plaintiffs will be in violation of the rules and this could expose the plaintiffs to fines and create prejudice on future licensing.

The state argued that the statues and rules do not cause harm to the plaintiffs. The state further argued that producing and distributing hemp products had not been legal previously in Texas, stating that the plaintiffs are intentionally not being clear on the harm. The judge offered to extend the status quo (before the effective date of the rules) for 14 days till the next hearing.  This would mean that the new rules could not be enforced until after the next hearing (temporary injunction) is resolved. The state was not amicable to this arguing that the media would misrepresent the judge’s order.

The judge granted a specifically worded TRO to the plaintiffs. Everyone will come back on 9/14/20 for the temporary injunction hearing, though this date may be subject to change.

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