The fight to keep intoxicating hemp products legal in Texas continues, with the state’s prominent industry organization and a group of businesses filing a complaint April 7 in Travis County District Court.
In the 330-page lawsuit, the Texas Hemp Business Council (THBC), the Hemp Industry Farmers of America (HIFA), and a cohort of state hemp manufacturers and retailers argue that state agencies overstepped their authority in adopting new rules that upend the marketplace for smokable THCA flower and other hemp-derived products.
The news rules, adopted by the Texas Department of State Health Services (DSHS) and the Texas Health and Human Services Commission (HHSC), went into effect on March 31, altering the testing methodologies for the 0.3% THC limit that defines hemp separately from high-THC cannabis.
Instead of continuing a 0.3% delta-9 THC standard established under 2019 Texas law, the new rules incorporate a total THC standard (including THCA) that incorporates a post-decarboxylation testing process, severely restricting access to smokable flower and pre-rolls in the Lone Star State.
This comes at a time when many politicians and cannabis industry stakeholders consider high-THCA flower to be an illegal marijuana product masquerading as legal hemp: Once non-intoxicating THCA is heated (e.g., smoked), it converts into intoxicating THC.
The DSHS and HHSC acted after the state Legislature and Texas Gov. Greg Abbott failed to come to terms last year on a pathway forward to either more tightly regulate or entirely prohibit intoxicating hemp products, leaving the industry to operate at the status quo.
Arguing that the new regulations collide with state law, the plaintiffs asked the district court on Tuesday to grant a temporary restraining order and provide injunctive relief.
“This case is about protecting the integrity of Texas law,” THBC President Cynthia Cabrera said. “Lawmakers carefully debated hemp policy and chose not to change the statutory THC standard during the 89th Legislature in 2025. State agencies cannot override the decision by regulation. Our members support reasonable, lawful regulation, but regulation must follow the Constitution and the statutes the Legislature enacted.”
In addition to the new testing methodology, the lawsuit challenges three other measures adopted by the DSHS and HHSC under the new rules, including provisions that the plaintiffs say:
- Prohibit the transport of hemp plants and materials into Texas for processing, disrupting lawful interstate commerce and in‑state manufacturing;
- Impose extreme fee increases, including raising manufacturer license fees from $250 to $10,000 per facility and retail registration fees from $150 to $5,000 per location; and
- Establish escalating daily penalties that undermine statutory notice‑and‑cure protections and expose businesses to disproportionate enforcement risk.
“Texas farmers and processors built their businesses around the law as written,” HIFA Executive Director Brian Swensen said. “These rules upend that framework by substituting an agency-created THC standard and blocking the lawful movement of hemp for processing. When agencies cut off the farm-to-market pipeline without legislative approval, it puts entire operations at risk.”
The new rules also implemented child-resistant packaging standards and labeling requirements. In addition, they cemented language prohibiting those under 21 from purchasing consumable hemp products, after the governor called for this youth-use prevention measure in an executive order he signed in September.
The plaintiffs aren’t challenging these specific regulations in their complaint. In fact, some Texas hemp industry operators have called for mandatory age-gating for years.
“Plaintiffs do not challenge the new rules enacting age-verification requirements and related consumer protections, which are within the scope of the agencies’ authority and are consistent with the existing statutes and Governor Abbott’s Executive Order,” the lawsuit states. “Indeed, plaintiffs support regulation within the bounds established by the Legislature and the Constitution. This action challenges rules that exceed those bounds.”
The plaintiffs asked the court to consider whether an administrative agency may substitute its own policy judgment for a constitutional lawmaking process that the plaintiffs argued has already run its full course, referencing the 2025 discord between the Legislature and Abbott that resulted in no new laws to regulate (or ban) the industry.
“When an agency substitutes its own policy judgments for those of the Legislature, it crosses a structural boundary that Texas courts have repeatedly enforced,” the lawsuit states.
The regulations that became effective on March 31 don’t implement the Legislature’s policy choices but rather replace them, the plaintiffs argued.
Attorney David Sergi, a co-counsel in the lawsuit, said the new rules go “far beyond” what Texas law allows.
“This case is about something simple,” he said. “The Legislature writes the law. Regulators are supposed to follow it; not rewrite it.”
