This is hardly a wow, man, decision. But for Texas hemp-producing interests that hoped now-legal hemp might be processed for smoking, the bar is not that high: The Texas Supreme Court’s decision last week held that hemp, though otherwise legal, could not be sold for smoking.
A Texas trial court had ruled the statute banning smokeable hemp unconstitutional, declared the rule invalid and permanently enjoined the state from enforcing the prohibition. In Texas Department of State Health Services v. Crown Distributing LLC et al. the supreme court held in a majority opinion by Justice Jeff Boyd that the state constitutional due-course-of-law provision does not protect any liberty or business interest that would allow hemp joints to roll and sell joints.
The majority explained that the Texas Constitution, in article 1, section 19, guarantees that no citizen “shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.” That means, the hemp producers and sellers argued, consumers should be allowed to bogart that joint or pass it on, my friend.
Not so, consumers. The only bogarting will be the state’s, the court essentially held. The case came to the Supreme Court by direct appeal after plaintiffs, the hemp interests, contended state’s due-course guarantee makes a new Texas law prohibiting processing and manufacturing of smokable hemp products to be unconstitutional. The Travis County district court agreed and permanently enjoined the defendants from enforcing the law.
The trial court declared the statute unconstitutional and the enabling rule invalid. The court permanently enjoined the state from enforcing the statute or the rule.
In a background section longer than their constitutional analysis, the court explained that Texas followed the 2019 Farm Bill that Congress used to legalize hemp for consumption after legislators adopted a “hemp plan” in 2019. But as an exception to a broad authorization for hemp to be sold with limits on THC, the chemical factor, the plan expressly prohibits the “processing” or “manufacturing” hemp-containing products “for smoking.” Congress classified “hemp” as an agricultural product and generally authorized each state to decide whether and how to regulate it.
The court said the state’s enabling statute requires the state agriculture commissioner’s rules to reflect “the ‘principle’ that ‘the processing or manufacturing of a consumable hemp product for smoking is prohibited.’” Based on this mandate, according to the majority opinion, the ag commissioner adopted an administrative rule prohibiting the “consumable hemp products for smoking.”
And keep in mind this is not your grandfather’s hemp for rope. In its reasoning the court elaborated on the illegal history of “marihuana” and hemp, the difference between them the amount of THC (Delta-9 tetrahydrocannabidiol). Because the federal Controlled Substances Act of 1970 prohibited any THC-containing substances, the U.S. Drug Enforcement Agency interpreted the law as banning all forms of the Cannabis sativa L. plant, whether “hemp” or “marihuana.”
But the 2014 Farm Bill adopted a new approach to distinguishing between legal and illegal cannabis. Instead of defining “marihuana” as “all parts of the Cannabis sativa L. plant except for the mature stalks and seed products, the 2014 statute defined marihuana as all plant parts except for “hemp,” all parts of the plant with a THC concentration no greater than 0.3 percent by dry weight.
Not your daddy’s Maui wowie.
The 2018 Farm Bill removed “hemp,” as now defined, from federal controlled-substance schedules and provided instead for it to be regulated as an agricultural product.
The Department of State Health Services contended the hemp companies complain about the inability to produce products “in contravention of the law”—“products that Texans could not even legally possess until ‘a few years ago.’” So, according to the department, the hemp interests “have, at most, ‘a mere unilateral expectation’ of being able to produce smokable hemp products and thus do not complain of the deprivation of a vested right. By contrast, the Hemp Companies argue that they are asserting the deprivation of a protected interest because “the manufacture and processing of smokable hemp products from exempt portions of the cannabis plant was legal” until the no-smoking provision was enacted.
“Even assuming arguendo that a different regulatory history might produce a different result,” the court reasoned, “the actual history of governmental regulation of ‘hemp’ undermines” the hemp companies’ claim. “But in either event, we do not find the fact that the Companies may have ‘legally’ manufactured smokable hemp products for a few (or even several) months before [the anti-smoking part of the law] became effective in June 2019 relevant to our analysis.”
“The legislature’s recent adoption of a ‘new framework’ that allows possession and use of once-illegal hemp products, and even the manufacture and processing of similar products,” the court held, does not transform the hemp interests “to produce products that the law still prohibits them from producing into a constitutionally protected interest.”
In a concurrence Justice Evan Young agreed that the due-course-o- law clause does not protect the interest that the plaintiffs claim. But Young then ponders what that clause protects—”and how does it do so? We still do not really know, even as we approach the sesquicentennial” of the current 1876 constitution. “The very fact that the lower court used the Texas due-course clause to invalidate the statute here,” Young wrote, joined by Chief Justice Nathan L. Hecht and Justices Jon Devin and Jimmy Blacklock, “illustrates why we should soon expect cases that require more from us. We must be ready when those cases come, and in today’s respite, we should take the perspective of Aesop’s ant rather than his grasshopper.”
“To that end … I believe that our precedents do not go much beyond what has permeated most of our jurisprudence,” Young wrote: “the unadorned assertion that the Texas due-course clause is essentially the twin (the junior twin, to be sure) of the federal due-process clause.”
For the Department of State Health Services: Kyle D. Highful, assistant solicitor general (lead counsel who argued the case), and Solicitor General Judd E. Stone II and Deputy Solicitor Bill Davis.
For the hemp companies: Matthew C. Zorn (lead counsel) and Constance H. Pfeiffer of Yetter Coleman in Houston (argued the case); Shane Pennington, Vicente Sederberg of New York; Chelsie N. Spencer and Paul C. Stevenson, Ritter Spencer in Addison; and Susan Hays, Law Office of Susan Hays in Austin.