Judge Rules THCA Flower Sales Can Continue in Texas as Industry Appeals Effective Ban
A Texas judge has temporarily blocked enforcement of a Department of State Health Services (DSHS) rule that would effectively ban sales of THCA flower, or smokable hemp, across the state, arguing that regulators have overstepped their authority.
The state maintains that it’s closing a loophole that has permitted the legal sale of hemp products that are highly intoxicating when smoked or vaped as manufacturers intend.
Why THCA and hemp laws have been disputed
The controversy over the legality of smokable hemp in Texas originated with the federal Farm Bill in 2018, which legalized hemp and defined it as cannabis flower with no more than 0.3% delta-9 THC, the plant’s main psychoactive ingredient.
Texas copied that definition almost word for word into state law the following year, unintentionally creating a loophole that has permitted the legal sale of high-THCA cannabis flower and other products, marketed as hemp.
THCA is not psychoactive in its raw form, but when smoked or vaped, it converts to THC, the ingredient that produces cannabis’s high.
With Texas’s medical cannabis program highly restricted until recent expansions, legal hemp products became big business in the state. Sold in smoke and vape shops, wellness stores, and online, legal hemp—including pre-rolled joints, flowers, buds, vape cartridges, and concentrates—generates around $5.5 billion of direct revenue annually and has an $11 billion impact on the wider Texas economy.
Addiction specialists have warned that high-potency legal hemp could increase rates of cannabis use disorder and demand for addiction rehabs in Texas.
To clamp down on THCA-containing products, Texas legislators last year passed a bill that would effectively ban most smokable hemp, naming THCA alongside THC as a prohibited compound.
Governor Greg Abbott vetoed the bill, arguing that an outright ban could conflict with federal hemp legislation, and pushed for hemp to be regulated like alcohol instead.
Recent developments
In response, Texas DSHS published new hemp regulations, effective March 31. Under a new “Total THC” standard, regulators calculating THC content include the potential THC produced through the conversion of THCA compounds when heated. Targeting intoxicating, smokable products, this standard would prohibit the sale of most consumable hemp products in Texas, exempting only edibles and tinctures.
“I estimated that flower is about half the market and smokable products put together, including vapes, are about two-thirds of the market,” Robin Goldstein, an economist at the University of California who researches the cannabis market, told Austin radio station KUT.
The regulations also increased licensing fees for hemp retailers and restricted sales to Texans over 21.
In response, the hemp industry filed a lawsuit in Travis County, arguing that regulators can’t redefine hemp and ban products where legislators have not.
What the new ruling states
Now, district court judge Daniella DeSeta Lyttle has agreed with the industry and issued a temporary injunction to block enforcement of the “total THC” standard in Texas, returning smokable hemp products to the market.
Unlike a previous restraining order issued by another judge in the case in April, Judge Little’s ruling also places a temporary pause on higher licensing fees for hemp manufacturers and retailers while litigation continues.
“We are obviously excited about this ruling,” Jason Snell, an attorney acting for the hemp industry, said. “[Judge DeSeta Lyttle] issued a statewide injunction which prohibits what we believe are illegal rules from going into effect, which would cripple the hemp industry statewide and deprive consumers and everyday Texans from access to legal products.”
The DSHS, represented by lawyers from the Texas Attorney General’s office, had argued that state regulators aren’t banning hemp but rather clarifying how THC should be measured so businesses can’t legally sell products that become intoxicating when heated.
“When these goods are used in the manner intended by the manufacturer, it is not uncommon for the user to consume a cannabis product that now contains 100 times the legal amount of Delta-9 THC,” Zachary Berg, a lawyer representing the defendants, said. He added that the regulations were needed to protect public health and safety.
The matter is far from settled. Legal skirmishes have continued since Judge DeSeta Lyttle’s ruling on May 1. The state of Texas appealed the injunction, which was briefly lifted.
The injunction was reinstated on May 7, after an emergency motion filed by the Texas Hemp Business Council, and the state was given until May 14 to formally respond to the industry’s legal challenge and explain why the injunction should be vacated.
Meanwhile, the hemp market has been left in legal limbo. “It’s legal one day and illegal the next. It’s confusing for them, and it’s certainly confusing for us,” Melanne Carpenter, a plaintiff in the case and the owner of Serenity Organics in Missouri City, said.
What the regulations could mean for hemp operators
The disputed DSHS regulations that triggered the lawsuit would not just sharply limit sales of smokable hemp under a new “Total THC” standard, but would also impose new costs and penalties on hemp operators.
Annual licensing fees for hemp manufacturers would rise from $250 to $10,000, while retailers would have to pay $5,000 per location each year, up from $150.
The regulations would also impose stricter testing, labeling, and transportation requirements, with more stringent penalties for violations.
The state says the licensing fees and penalties are necessary for enforcing the regulations, especially in an expanding market.