Criticized retail smokable hemp ban becomes official, and it’s stricter

There has been an update on this, a lawsuit has been filed.

dshs hemp smokable ban

Texas DSHS posted today that code 300.104 banning the retail and distribution of smokable hemp products has been approved. The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency’s legal authority.

Texas Cannabis Collective has reported on this in the past and was alerted today by Andrea Hope Steel that the rule would be going into effect. This will mean that nobody in the state of Texas will be allowed to legally sell or be a distributor of smokable hemp products. No warehouse wholesale distribution, and no face to face customer sales of over the counter products.

The move comes after thousands of emails were sent into the agency voicing opposition to the move. At the time the department was not pursuing distribution of the product and only retail sales. The move would also require e-commerce retailers to register with the state if they want to sell consumables to Texans.

DSHS does note that “Properly tested and labeled hemp flower, marketed for use other than smoking (e.g. as a tea or a food additive) does not fall under the retail ban contained in §300.104”

Ms. Steel who is an attorney and co-chairs the Cannabis Business Law Group with Lisa Pittman at Coats Rose felt that with the amount of opposition that was voiced, DSHS would have acted differently.

“With over 97% of the more than 1,700 comments received from various businesses in response to the proposed smokable ban, we were hoping to see DSHS back down from this rule that appears go beyond the statutory language,” noted Steel.

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Ms. Steel pointed out on her timeline that DSHS commented on how this came to be. The comments note the numbers of 1690 comments opposing the concept. 1,425 comments were in the form of emails, 184 were emails from individuals, one was by letter, 10 were by telephone, and 70 were emails from businesses. DSHS notes that the top reasons for opposition to the prohibition of the retail sale of smokable hemp products contained in §300.104 include:
-A deleterious effect on the overall Consumable Hemp Product business in Texas, particularly on those businesses already selling the products.
-A negative impact on individuals who depend on smoking for rapid delivery of cannabidiol (CBD) to relieve medical conditions.
-Lack of authority for DSHS to include the retail ban in the proposed rule when it was not included in the language of Texas Health and Safety Code, Chapter 443.
-Lack of constitutionality under the Texas Farm Bill.

This was the final indicator DHSH, gave “DSHS disagrees with these commenters. H.B. 1325 (Texas Health and Safety Code, Chapter 443) requires DSHS to develop rules regulating the manufacture, distribution, and sale of consumable hemp products. DSHS cannot reasonably approve the retail sale of products of which H.B. 1325 clearly prohibits the manufacture in Texas Health and Safety Code, §443.204(4). DSHS considers the retail ban in proposed §300.104 a logical extension of the manufacturing ban in Texas Health and Safety Code, §443.204(4). No change was made to the rule in response to these comments.

In response to this Ms. Steel noted to TCC the following,

Enforcement will be a nightmare and the end-goal shouldn’t be to push businesses into creative marketing strategies, but rather address the heart of the concern. We’ll see if it sticks or if things get changed – either as a result of a lawsuit or a change next legislative session.”

TCC reached out to Susan Hays who is an attorney working with cannabis and hemp groups. Hays has been following the DSHS process and had this to say about the decision,

“What’s really disappointing is DSHS’s failure to look out for the health and safety of Texans. All products humans consume should be tested for contaminants and contents. With these regulations, consumers will simply acquire from out of state or use flower that has not been adequately tested and labeled. DSHS’s head in the sand attitude is a governing fail.”

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In May, TCC posted that the Texas Hemp Growers Association has already funded to start a lawsuit against the agency. THGA asserts that the smokable hemp retail ban is unconstitutional. We can expect to hear more about this as the date the regulation goes into effect, August 2, 2020, approaches.

Many are possibly looking to Indiana which at one point had its law declared unconstitutional by a federal court. That decision was reversed by the Seventh Circuit United States Court of Appeals on July 8th

Time will tell now if the DSHS regulations will be left standing. The code officially goes into the register on Friday, and will be active 08/2/2020.

About Jesse Williams 338 Articles
Jesse Williams is a retired Navy veteran with a background in nuclear power propulsion plants, graphic design, and mass communications. When not writing articles for Texas Cannabis Collective or EducatingTexans.org he enjoys time with his wife and son in SW Austin. He is an alumnus of NNPTC, NPTU, Austin Community College and Texas State University.

13 Comments

    • The 1st problem is that the Department of Health is not overseeing this instead the Department if Public Safety is… when did a cop or like learn how to treat medical conditions? When do 5hey learn this? At the academy where they learn to shoot their guns? How ass backwards is this state?

    • The article cites the Texas State Register. This will not be published to the full register until this coming Friday (tomorrow as of this typing). The article even links to the exact language DSHS will be using that excludes smokable hemp products.

      You can find them all here. https://texreg.sos.state.tx.us/public/regviewctx$.startup and search for hemp.

  1. Is it possible that texas regulators, not the people, want smokeable hemp banned, so that they can start arresting people again for small amounts of “suspected marijuana”? If hemp is banned in texas, then people can no longer use the excuse of this might be hemp or it might be weed. If hemp is no longer legal to be smoked, then the police will no longer need to worry about if marijuana is .03 thc or not. It will be back to imprisoning the public as usual here in texas. Dan patrick and Abbot must go.

    • That could be a possibility. I wrote an article describing how someone in the community got hemmed up for hemp and how that played out. Likely if you’re caught smoking hemp in public, the same thing would happen and you possibly get a manufacturing charge if you cannot prove that you got it out of state. That or it paints you in the corner of making an illegal purchase.

      The golden rule of all of this: Kepp quiet and say nothing without an attorney.

    • I’m pretty sure Abbot received millions of dollars for this SMDH ITS ALL POLITICS AS USUAL

  2. If this gets reversed, will vape be allowed…eventually for medicinal purposes?

    • That’s kind of tricky to answer as part of one bill. Hemp did not have any requirement in its legislative language that said vaping was prohibited. The compassionate use side of cannabis – that with percentages above 0.5% – prohibits vaping of the medication. So for any compassionate use cannabis (>0.5%) to be smoked, the language for the law would have to change with a new bill in the next session.

  3. To make this clear, will selling hemp flower that labeled and tested can be sold but not advertised as a smokable ?

    • Correct. Flower can be sold as long as it is not marketed for smoking and is lab tested.

  4. The injunction in Indiana is still in place. Justin Swanson, Paul Vink and their legal team filed for a “rehearing” of the appeal. So the lower federal district courts order, the injunction, it still stands until such time that the plaintiffs and defendants meet once again in appeals court which could be as far away as January of 2021.

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