Recently, leaders within Texas’s hemp industry, alongside advocacy groups, have taken legal action against the state in a bid to block newly implemented regulations that threaten to eliminate natural smokable hemp products and impose steep licensing fees. This lawsuit has been filed by the Texas Hemp Business Council, Hemp Industry & Farmers of America, as well as several dispensaries and manufacturers based in Texas, against the Texas Department of State Health Services and the Texas Health and Human Services Commission.
The plaintiffs argue that these agencies have exceeded their constitutional authority by altering the statutory definitions of hemp as determined by lawmakers back in 2019. Attorney David Sergi, representing the hemp coalition, emphasized that “Under current Texas law, hemp is defined by its delta-9 THC concentration of not more than 0.3%. These Texas officials and state agencies are clearly attempting to create new law in direct contradiction to what the Texas legislature intended.”
On March 31, the Texas Department of State Health Services enacted new regulations concerning consumable hemp-derived THC products. These regulations introduced requirements for child-resistant packaging, significantly increased licensing fees, and imposed new standards for labeling, testing, and record-keeping. Furthermore, the rules established a legal purchasing age of 21, which had previously come into effect as an emergency directive.
The lawsuit specifically challenges two aspects of these rules: one that limits the total THC content in products to 0.3% and another that raises licensing fees for manufacturers of hemp-derived THC from $258 to $10,000 per facility, while retail registrations surge from $155 to $5,000. Sergi noted, “The Texas hemp business community is not challenging rules related to age verification or consumer protections. They wholeheartedly support those regulations, as they fall within the agency’s authority.”
Despite the overarching prohibition on marijuana, Texas lawmakers legalized hemp in 2019, defining it as containing less than 0.3% levels of intoxicating Delta-9 THC. To circumvent these restrictions, manufacturers have been cultivating hemp plants rich in THCA, which, when ignited, can produce a psychoactive effect. Many legislators believe this created an unregulated recreational THC market.
In response to concerns about these intoxicating products reaching children, the Texas Legislature voted to ban such items. However, Governor Greg Abbott vetoed this decision last summer, instead directing the Texas Alcoholic Beverage Commission and the Department of State Health Services to enhance industry regulations.
The newly established rules require laboratories to measure the total THC in products. If levels exceed the 0.3% threshold, the product is deemed noncompliant, effectively banning some of the most sought-after hemp products, including THCA flower and pre-rolled joints. The lawsuit contends, “An administrative agency may not substitute its own policy judgment for the outcome produced by the constitutional lawmaking process. The Texas Constitution vests legislative power in the Legislature, not administrative agencies.”
