SCOTX hears oral arguments on smokable hemp ban

Tuesday morning the Supreme Court of Texas heard oral arguments on smokable hemp ban put in place by both HB 1325 and Department of State Health Services (DSHS).

The state open it’s arguments represented by Solicitor General Bill Davis stating that the reason for the implication of a sale on the ban of smokable hemp was it wants to reduce end use and that it was a public health concern. The state also reiterated that it created challenges for police officers. The state provided no evidence and did not point to any evidence that this was the case.

During the state’s arguments, the state put forth that the ban on smokable hemp was not an oppressive statute because the state had other provisions along with the bill in it’s entirety that were not oppressive. That by association within the bill, it was not an oppressive or undue burdensome measure.

The plaintiffs in the case represented by Attorney Constance Pfeiffer argued that the state needed to show that their was evidence that would overcome the rational review standard created by an early SCOTX case named Patel. This standard would require the state to make sense of why it is essentially banning the manufacture and sale of a legal substance under the claim of reducing end use, while it still allows outside actors not of Texas would be able to sell that product to Texans without pause.

The notion was put forward that is the state was concerned about health that age gates of 18 or 21 could have been put in place. That the state could have outright banned the products sale in the state, and would not have been in violation of the federal hemp law created by the 2018 farm bill. And that the legislature did not do that. It did not show an interest in health issues of a smoking hemp item despite that within the same session the legislature raised the smoking age of tobacco from 18 to 21 years of age, and claimed it was for health reasons.

Pfeiffer stated that, “what is unique about this case is that the state is trying to come to court and say disregard Patel, we don’t have to put on any evidence to justify our interests and you don’t have to consider the evidence that has refuted our interests.”

She continues noting that’s where you get back to Patel and the court says “look at the entire record and look to see if the states interests are actually being advanced”…that you can look to the effects of that regulation. See whether this is being advanced and what would be the impacts of that Texas business being regulated.

The state came back and claimed that Pfeiffer claimed that flower was legal in 2018(she claimed parts of the plant anatomically were legal and businesses were within the law) despite Texas did not legalize flower until 2019. The state notes that the health and safety code had to change to accept that hemp was no longer scheduled in 2019 (this was done way behind schedule from the change of the farm bill in Texas even though the Texas schedule must change with the Federal schedule under Texas law) and that they believe that means that no part of the plant was legal for making a smokable item until then.

The state continued to argue that the case should have never been brought to trial, regardless of the standard for a rational review basis under the Patel SCOTX ruling. That because of that argument, that is why the state provided no evidence during trial and felt that they did not need evidence. Then the state went as far as stating that in a rational basis case “no evidence is required there.” Davis continued with stating that all of this should be addressed at the legislature and not courts, that is why the legislature has regular meetings and lobbyists exist – to note those concerns.

The judges hearing the case made comparison to out of state gambling, hypothetical video games being banned for the sale to minors, how much the federal law was keeping the state from outright banning the sale in the state, why the entirety of HB1325 isn’t thrown out on the this same rationality basis, among other items.

“So if we can come up with some legitimate purpose to which this law is rationally related that saves the law regardless of whether the state or department or any of its lawyers have ever raised that legitimate purpose to this court,” asked Justice Jeff Boyd

Mr. Davis agreed with that. The case has been submitted and results are likely sometime in the summer of 2022.