Texas hemp industry leaders and advocacy groups have sued the state to block new regulations that eliminate natural smokeable hemp products and increase licensing fees.
The Texas Hemp Business Council, Hemp Industry & Farmers of America, and several Texas-based dispensaries and manufacturers filed for a temporary restraining order against the Texas Department of State Health Services and the Texas Health and Human Services Commission on Tuesday, alleging that the agencies have overstepped their constitutional authority by rewriting the statutory definitions of hemp established by lawmakers in 2019.
“Under current Texas law, hemp is defined by its delta-9 THC concentration of not more than 0.3%,” said David Sergi, an attorney for the hemp coalition, in a press release. “These Texas officials and state agencies are clearly attempting to create new law in direct contradiction to what the Texas legislature intended.”
Attorney General Ken Paxton and DSHS have not responded to requests for comment on the lawsuit.
DSHS released regulations on consumable hemp-derived THC products that went into effect on March 31. These new regulations include child-resistant packaging, a significant increase in licensing fees, new labeling, testing, and bookkeeping requirements. The rules also codify the legal purchasing age to 21, which went into effect last year as an emergency directive.
However, the lawsuit calls out two rules that reduce the total THC content in products they sell to 0.3% and increase licensing fees for manufacturers of hemp-derived THC from $258 to $10,000 per facility and retail registrations from $155 to $5,000.
“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,” said Sergi. “We are seeking to halt rules that would effectively end the in-state production of hemp and the sale of hemp products—items the Legislature chose not to ban during recent legislative and special sessions.”
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Under the new rules, laboratories tests now measure the total amount of any THC in a product. If the THC levels exceed the 0.3% threshold, even if it’s only activated upon being smoked, the product will be noncompliant under state regulations. As a result, some of the most popular hemp products, like THCA flower and pre-rolled joints, have been banned.
“An administrative agency may not substitute its own policy judgment for the outcome produced by the constitutional lawmaking process,” the lawsuit states. “The Texas Constitution vests legislative power in the Legislature, not administrative agencies.”
See here, here, here, and here for some background. This bears a resemblance to the Historically Underutilized Business Program lawsuit, in that it argues that the entity making the change exceeded its authority in attempting to do something that the Legislature chose not to do. Seems like a sound legal strategy, we’ll see if the state’s response is more robust than “nuh uh”. The Current has more.