Members of the hemp industry are suing Texas, claiming that the ban on hemp-derived THC products impose an unconstitutional burden on interstate commerce.
Three members of the hemp industry are suing the state of Texas for violating commerce protections after it was announced last week that nearly all hemp-derived THC products are illegal.
On Friday, two hemp retailers and a distributor filed a lawsuit in the U.S. District Court for the Southern District of Texas against the Texas Department of State Health Services; Attorney General Ken Paxton; and the Galveston County criminal district attorney and sheriff, alleging that classifying hemp-derived substances as illegal violates the 2018 Farm Bill, which removed it from the federal Controlled Substances Act.
The complaint states that the reinstated definitions provide no delineation between lawful hemp and unlawful marijuana; that it’s preempted by the 2018 Farm Bill’s protections for the interstate hemp market; and that these classifications impose an unconstitutional burden on interstate commerce.
In addition to the complaint, the plaintiffs are also moving for a temporary restraining order and preliminary injunction to prevent the ban on these THC products.
“For more than seven years, Texans have built a multibillion-dollar hemp industry under laws that define these products as legal hemp. Without any change to those laws, the State now says they’re Schedule I drugs, like heroin,” said Andrea Steel, lead counsel for the hemp industry in this case, in a news release
State officials banned at the end of last month several hemp-derived THC cannabis products, including those containing delta-8 and delta-10 THC variants, punishing people in possession of them with jail time and fines. However, delta-9 THC, the most commonly sold THC product in Texas, will remain legal.
Now that THC variants are classified as a schedule I drug, possession of illegal THC products will be treated as a state jail felony, which carries a punishment of 180 days to two years in prison and fines of up to $10,000, say cannabis experts.
“Our Constitution does not allow the government to jail a person under a framework no one can make sense of – our clients are asking the federal court to protect Texans from their own confused government,” Steel said.
Cannabis experts say if the ban is not removed, more than half of the THC products in stores might be removed from shelves.
“It’s a pretty big blow, and it’s recriminalizing a lot of cannabis products that have been completely legal and allowable in the state for many years, so we’re taking steps backwards toward prohibition,” Sarah Todd, media representative at Texas Cannabis Policy Center, previously told the Tribune.
The recent change stems from a Texas Supreme Court decision in May that allowed the Texas Department of State Health Services to reclassify all hemp-derived THC, except for low-dose delta-9 THC, as a Schedule 1 drug, prohibiting its possession and sale in the state. The ruling ended a 2021 injunction that paused DSHS from enforcing the new classification, which effectively allowed stores to stock different kinds of THC for the past five years.
The ban applies to all synthetically created THC forms, including delta-8, delta-10, THCP and THCA flower. The one exception will be delta-9 products with less than 0.3% THC by dry weight.
Delta-9, which naturally occurs in cannabis and is not typically synthetically derived, will remain the only THC option for Texas consumers because the federal 2018 Farm Bill legally defines hemp as cannabis containing no more than 0.3% delta-9 THC, and it does not list other cannabinoids.
This is the latest blow to the state’s hemp industry, whose year started with promises from lawmakers that hemp is here to stay but has been consumed with uncertainty over the last several months as flurries of court actions have ripped products off the shelves and then put them back on.
A statewide ban on the sale of smokeable hemp, such as flower buds and rolled joints, was supposed to go into effect on March 31, but a court ruling has paused it, so delta-9 smokeable hemp will also still be available to consumers.
Texas banned the sale of vape pens containing THC in the last legislative session.
Various lawmakers have promised to continue their crusade against hemp this upcoming legislative session, making arguments against THC that harkened back to the days of the “Just Say No” campaigns of the ’80s regarding the risks of THC usage and its effects. Members of the committee used the frying-pan-and-brain analogy as an example of how these products cause mental health problems among young people.
Sen. Charles Perry, R-Lubbock, has already confirmed he will once again file a bill to ban consumable hemp products at the next legislative session.
There are about 14,000 retail stores statewide that are licensed to sell consumable hemp, according to the Department of State Health Services.
Source: Stephen Simpson, The Texas Tribune
Photo Credit: Various Delta 8 THC products at a Valero station on Feb. 9, 2023 in Spring Branch. Sergio Flores for The Texas Tribune
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