SB 21 signed by the governor places no restrictions on hemp.
SB 21 was signed into law yesterday by Governor Abbott, making the sale of cigarettes, e-cigarettes, and other tobacco products to anyone under the age of 21 a Class C misdemeanor including a fine of up to $500. Possession, purchase, consumption, or receipt of cigarettes, e-cigs, or tobacco products by anyone under the age of 21 can be fined an amount not to exceed $100, and the court may impose a requirement that a defendant attend an e-cigarette and tobacco awareness program or perform e-cigarette and tobacco-related community service.
Just like the hempette article, the appropriate bill language and current legal language needs to be laid out to completely understand what is possibly going to happen.
Section 161.081, Health and Safety Code, is amended by adding Subdivision (1-b) to read as follows: (1-b)“Minor” means a person under 21 years of age.
SECTION 3. The heading to Section 161.082, Health and Safety Code, is amended to read as follows: Sec.161.082.SALE OF CIGARETTES, E-CIGARETTES, OR TOBACCO PRODUCTS TO PERSONS YOUNGER THAN 21 YEARS OF AGE PROHIBITED; PROOF OF AGE REQUIRED.
SB 21 Enrolled
So, that’s the point at which one can see that minor in this instance was changed to mean ages 21 and older. Notice that Section 161.081 is mentioned and that section defines what is a cigarette.
Sec. 161.081. DEFINITIONS. In this subchapter:
Section 161.081 Health and Safety Code
(1) “Cigarette” has the meaning assigned by Section 154.001, Tax Code.
(1-a) “E-cigarette” means an electronic cigarette or any other device that simulates smoking by using a mechanical heating element, battery, or electronic circuit to deliver nicotine or other substances to the individual inhaling from the device. The term does not include a prescription medical device unrelated to the cessation of smoking. The term includes:
(A) a device described by this subdivision regardless of whether the device is manufactured, distributed, or sold as an e-cigarette, e-cigar, or e-pipe or under another product name or description; and
(B) a component, part, or accessory for the device, regardless of whether the component, part, or accessory is sold separately from the device.
With that brought to attention, one will find the definition of cigarette, cigar, and tobacco product in 155.001 and 154.001 of the Texas tax code.
Sec. 155.001. DEFINITIONS. In this chapter:
Chapter 155 Texas Tax Code
(2) “Cigar” means a roll of fermented tobacco that is wrapped in tobacco and the main stream of smoke from which produces an alkaline reaction to litmus paper.
(15) “Tobacco product” means:
(A) a cigar;
(B) smoking tobacco, including granulated, plug-cut, crimp-cut, ready-rubbed, and any form of tobacco suitable for smoking in a pipe or as a cigarette;
(C) chewing tobacco, including Cavendish, Twist, plug, scrap, and any kind of tobacco suitable for chewing;
(D) snuff or other preparations of pulverized tobacco; or
(E) an article or product that is made of tobacco or a tobacco substitute and that is not a cigarette.
Sec. 154.001. DEFINITIONS. In this chapter:
Chapter 154 Texas Tax Code
(2) “Cigarette” means a roll for smoking:
(A) that is made of tobacco or tobacco mixed with another ingredient and wrapped or covered with a material other than tobacco; and
(B) that is not a cigar.
Hemp has no age limit set in either HB 1325, SB 21 for Farm Bill 2018. Hemp isn’t even mentioned in SB 21. Not once. The part that gets tricky, is defining tobacco substitute. It’s not mentioned anywhere else in the legal system.
Are there people that consider that tobacco substitutes include hemp? One can imagine so. Are there people that consider hemp to be its own separate product that is not a tobacco substitute? One can imagine that as well. If it is not defined well enough and case history has no precedent on this topic (ET could not find any case precedents during the writing of this article), would that mean that hempettes being sold to anyone under 21 is a possible gray area? One could easily say that hemp is its own separate product and possibly be in the clear. There is a note to be added that a city or county may decide to define tobacco substitute via their own ordinance and law as allowed by the new law.
Sec.161.089.PREEMPTION OF LOCAL LAW. (a)Except as provided by Subsection (b), this subchapter does not preempt a local regulation of the sale, distribution, or use of cigarettes or tobacco products or affect the authority of a political subdivision to adopt or enforce an ordinance or requirement relating to the sale, distribution, or use of cigarettes or tobacco products if the regulation, ordinance, or requirement: (1) is compatible with and equal to or more stringent than a requirement prescribed by this subchapter; or (2) relates to an issue that is not specifically addressed by this subchapter or Chapter 154 or 155, Tax Code.
SB 21 Enrolled
(b) A political subdivision may not adopt or enforce an ordinance or requirement relating to the lawful age to sell, distribute, or use cigarettes, e-cigarettes, or tobacco products that is more stringent than a requirement prescribed by this subchapter.
Will this mean that we see an influx of 18 to 21 year olds buying hemp cigarettes as an alternative to smoking regular cigarettes? And if so, how much money might Texas have cheated itself out of by banning the creation of smokable hemp in Texas but not the sale of it? Maybe it didn’t when SB 21 also has language such as the following:
THE PROHIBITIONS ON THE PURCHASE OR ATTEMPT TO PURCHASE DESCRIBED ABOVE DO NOT APPLY TO A PERSON WHO WAS BORN ON OR BEFORE AUGUST 31, 2001.
SB 21 Enrolled pg 4
Those individuals that are aged 18 on or before Aug 31, 2001 will still be able to buy tobacco products, and that would lead to one of two possible outcomes:
1. People looking aged 18 to 21 are going to be generally ignored by law enforcement when smoking any tobacco/hemp product for the next 3 years or
2. People looking aged 18 to 21 are going to be in a position where anytime they smoke a tobacco/hemp product they can be requested to produce an ID by a peace officer, as it is an apparent possibility that one is engaging in unlawful activity by smoking.
Maybe a lawyer familiar with this could chime in and help out in how this situation could be handled. What are your thoughts? Do you think that hempettes may be the next big smoking item?
