A federal judge on Sunday declined to temporarily block Texas’ ban on several hemp-derived THC products, leaving the restrictions in place while a lawsuit challenging their legality moves forward.
U.S. District Judge Jeffrey Brown of Galveston denied an emergency motion for a temporary restraining order sought by two hemp retailers and a distributor. Brown found the businesses had not sufficiently shown they would suffer irreparable harm from the ban’s effect on interstate commerce.
The ruling does not resolve the lawsuit. A request for a preliminary injunction, which allows for fuller briefing and an evidentiary hearing, remains pending before the court.
“A temporary restraining order is emergency relief, held to one of the toughest standards in federal law,” Andrea Steel, lead counsel for the hemp industry in the case, said in a news release. “Being denied one at this stage does not decide our case. We expected a hard fight, and we remain confident in the law.”
The three hemp businesses sued the Texas Department of State Health Services, Attorney General Ken Paxton and the Galveston County criminal district attorney and sheriff last week, arguing that the state’s classification of certain hemp-derived substances as illegal conflicts with the 2018 federal farm bill.
That law removed hemp from the federal Controlled Substances Act and defined hemp as cannabis containing no more than 0.3% delta-9 THC by dry weight.
The lawsuit argues that Texas’ reinstated definitions do not adequately distinguish legal hemp from illegal marijuana, conflict with federal protections for the interstate hemp market and place an unconstitutional burden on interstate commerce.
Steel said the state told the judge that the businesses do not face a concrete, imminent threat of enforcement. She said that raises questions about why the restrictions were implemented if law enforcement does not intend to enforce them.
The plaintiffs also plan to argue that the effects extend beyond Texas. The state sits along several major national freight routes, meaning hemp products destined for other states can pass through Texas.
“Conflicting public descriptions of which hemp products may lawfully pass through Texas and which could expose someone to felony liability underscore the real-world uncertainty facing businesses and consumers,” Steel said.
Texas banned several hemp-derived THC products at the end of last month, including products containing delta-8 and delta-10 THC. The restrictions cover synthetically created forms of THC, including delta-8, delta-10, THCP and THCA flower.
Delta-9 products containing less than 0.3% THC by dry weight remain legal.
With the prohibited THC variants classified as Schedule I drugs, possession of illegal THC products can be prosecuted as a state jail felony, carrying 180 days to two years in prison and a fine of up to $10,000, according to cannabis experts.
Those experts say more than half of the THC products currently found in stores could disappear from shelves if the ban remains in place.
“It’s a pretty big blow, and it’s recriminalizing a lot of cannabis products that have been completely legal and allowable in the state for many years, so we’re taking steps backwards toward prohibition,” Sarah Todd, a media representative at the Texas Cannabis Policy Center, previously told the Tribune.
The change follows a Texas Supreme Court decision in May that allowed the Department of State Health Services to reclassify hemp-derived THC, with the exception of qualifying low-dose delta-9 THC, as a Schedule I drug.
The ruling ended a 2021 injunction that had prevented DSHS from enforcing the classification. While that injunction was in place, stores were able to continue selling different types of hemp-derived THC products.
The federal farm bill’s definition of hemp focuses on delta-9 THC, which occurs naturally in cannabis. Cannabis containing no more than 0.3% delta-9 THC by dry weight is considered hemp under federal law.
The latest court fight adds to months of uncertainty for Texas’ hemp industry.
A statewide ban on the sale of smokeable hemp products, including flower and rolled joints, had been scheduled to take effect March 31, but a court ruling put that restriction on hold. Delta-9 smokeable hemp that meets the legal THC limit therefore remains available.
Texas lawmakers also banned the sale of vape pens containing THC during the most recent legislative session.
The fight over consumable hemp is expected to return to the Capitol. Sen. Charles Perry, R-Lubbock, has said he will again file legislation seeking to ban consumable hemp products during the next legislative session.
About 14,000 retail stores across Texas are licensed to sell consumable hemp, according to the Department of State Health Services.
