Late last year the Texas Department of State Health Services held a hearing on proposed regulations for consumable hemp, with a draft of the rules published for the public. This draft specific outlines that smokable hemp retail will be prohibited in the state.
With DSHS continuing to move forward with this language to block retailers in Texas, 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.
The THGA states on their funraising page, “In its “final rules,” DSHS is proposing a total ban on smokable hemp products, which goes against the Interstate Commerce Clause and Texas’ own hemp law. This rule would be financially devastating to Texas’ retailers; force farmers to sell out-of-state; and deprive consumers of freedom of choice. Not only that, this rule appears to criminalize any person who may pass through Texas to distribute smokable hemp to another state.”
If the case goes anything like Indiana’s, this will likely be very costly for the taxpayer and severely hurt the already COVID-19 crippled state budget. Mainly because of the cost of the state to have attorneys cover the case to defend the department’s stance.
Texans for Responsible Marijuana Policy was quick to point out in December that the rules proposed go a step beyond what HB1325 stated will be prohibited, believing that the agency has overstepped its bounds in adding language not originally included on the list of prohibitions.
Rule §300.004 MANUFACTURE OF SMOKABLE HEMP PRODUCT. (a) The processing, manufacturing, and retail sale of consumable hemp products for smoking is prohibited.”
Hemp rules draft.
The original language in HB1325 stated,
Sec. 443.204. RULES RELATED TO SALE OF CONSUMABLE HEMP PRODUCTS. Rules adopted by the executive commissioner regulating the sale of consumable hemp products must to the extent allowable by federal law reflect the following principles:
(4)the processing or manufacturing of a consumable hemp product for smoking is prohibited.
HB1325
The same bill sets the following requirements for DSHS to create a plan
Sec.121.003. STATE PLAN. (a) The department, after consulting with the governor and attorney general, shall develop a state plan to monitor and regulate the production of hemp in this state. The plan must comply with: (1)7 U.S.C. Section 1639p; (2)Chapter 122; and (3)Chapter 443, Health and Safety Code.
Sec. 121.004. RULES. The department may adopt any rules necessary to implement and administer the state plan under Section 121.003.
HB1325
It is true that the original bill language does not explicitly prohibit the sale of smokable product, only the manufacture and process of a consumable hemp product for smoking. The bill does not explicitly prohibit DSHS from writing rules that prohibit it, but also was not directed to fill any gaps that they believe should have been addressed by the legislature. It is situations like this that it is desirable that the law be specific in its direction rather than broad. It works well to write broad language when directing which ailments a patient can be prescribed a medicine, the broader the better, but not with an issue such as this.
DSHS’s proposed rules are up for consideration through June 2020, and they are accepting public comment. If you are concerned about this issue (or anything else in the proposed rules), take the time to contact the department with thoughtful feedback.
Email DSHSHempProgram@dshs.texas.gov or mail comments to:
Department of State Health Services, MC 1987
Hemp Program Comments
8407 Wall Street
Austin, Texas, 78754
A great example of a letter sent to DSHS was posted by Chris Grisolia on FB,
To whom it may concern,
It has been brought to my attention that DSHS is comteplating banning the sale of hemp flower & products from being sold in Texas. This completely goes against the legislation that was signed into law by Governor Abbott, HB 1325.
It is not the job of DSHS to circumvent the laws that are put into effect by the elected officials of this state. You are simply to create and enforce regualation relating to said laws.
It is exactly this type of overreach by regualtory authorities that not only creates havoc on interepeting the laws we elect our officials to enact, but creates extreme and underserved restrictions upon the citizens of Texas. This situation is something I will work tirellessly to put an end to here in Texas.
In sincere hopes you reconsider this radical and compeltely un-needed ban on Hemp Flower and products.
I am
Chris Grisolia
(Gramps)