Texas “Head Shop” Laws
Whether intentionally or not, the Texas legislature instituted momentous changes to the legal status of CBD and hemp-based products with the passing of House Bill 1325 in 2019. Since the passing of that bill, a considerable number of businesses selling newly legal CBD, hemp, Delta-8, and associated products have entered the market, and Texas regulatory agencies are reeling from confusion over whether and how these products and businesses may be regulated. One of many potential consequences of the new law awaits a decision from a Texas court – whether certain “head shop” laws remain enforceable by municipalities against businesses selling these types of products.
What are “Head Shop” Laws?
A “head shop” or “smoke shop” is an establishment that sells products such as rolling papers, vaporizers, water pipes, and other products which are generally advertised as products to be used in connection with smoking tobacco. In most cases, however, many or all the products sold can also be used to consume illegal marijuana and other THC-containing products.
“Head Shop” laws are passed by municipalities to restrict “head shop” businesses from operating within their jurisdiction. For example, the city of Cedar Park restricts head shops in their municipality, with the following description of what a head shop is:
“Head Shop. Any retail establishment open to the public that presents, displays, or offers for sale paraphernalia, items, equipment, or products commonly used, intended to be used, or commonly known to be used, for the ingestion, inhalation, preparation, or injection of illegal substances, to include any device which has been fabricated, constructed, altered, adjusted, or marked especially for use in the smoking or ingestion of a controlled substance, notwithstanding that it might also be possible to use the device for some other purpose.” Section 11.02.064, Cedar Park Zoning Ordinances.
What does the Hemp Bill have to do with “Head Shop” laws?
One Texas business is currently in an ongoing dispute with the city of Cedar Park over, among other things, whether the city can designate their business to be an unlawful “head shop.” In that case, the city alleged that the business, Planet K Gifts, sells “bongs, water pipes, assorted specialty pipes and bowls, and other paraphernalia, items, or products commonly used, intended to be used, or commonly known to be used, for the ingestion, inhalation, preparation, or injection of illegal substances.” As a result, they have issued, and continue to issue, many fines and have acted in other ways to harm Planet K’s business.
However, Planet K argues in a lawsuit that due to many non-illegal substances being consumed by using their products (such as newly legal CBD-only or low-THC containing substances such as Delta-8 products), it is no longer valid to consider their products “commonly used, intended to be used, or commonly known to be used, for the ingestion, inhalation, preparation, or injection of illegal substances.” Essentially, they believe the law should be struck down because it no longer makes sense after the passing of the new Hemp laws in 2019. Planet K is seeking relief from a federal court to stop the city from continuing to fine them and disrupt their business. The court has yet to decide whether to grant Planet K’s motion, but this dispute represents just one of many areas of contention under the new 2019 Hemp law.
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