KUT Reports

New rules prohibiting the retail sale and distribution of "smokable" hemp products are unconstitutional, companies argue in a lawsuit filed Wednesday in Travis County.

When Texas legalized hemp last year, the legislation explicitly outlawed manufacturing and processing hemp products meant to be smoked. But rules released Sunday defining the state’s hemp program also banned the sale of these products.

That cut off a major source of income for many small businesses that sell hemp in Texas.

Custom Botanical Dispensary, a downtown Austin shop that carries hemp products and oils, is one of four plaintiffs suing the state.

Owner Sarah Kerver, who also founded the hemp brand 1937 Apothecary, said 51% of her sales are of products that can be smoked or vaporized.

“Speaking to other retailers and brands around the state, they’re in the same economic situation,” she said.

The lawsuit argues the ban of manufacturing and processing smokable products enacted as part of the law is unconstitutional and that the ban on distributing and selling these products is not valid.

Jax Finkel, executive director of the Texas Chapter of the National Organization for the Reform of Marijuana Laws, said banning the sale of smokable products goes beyond the intent of the bill.

Kerver was among those who spoke against a sale ban during the public comment period on the new hemp rules.

“I know that the majority of the comments that were submitted were [against] the smokable ban,” she said.

She said if consumers can buy hemp products, they should have the freedom to decide whether or not they want to smoke them.

“Hemp is hemp. The precedent has already been set,” she said.

Got a tip? Email Jerry Quijano at jerry@kut.org. Follow him on Twitter @jerryquijano.