A Travis County judge temporarily blocked a statewide “ban” on certain hemp products until April 24. 

The Texas Department of State Health Services adopted new rules on March 31, changing how the acceptable tetrahydrocannabinol, or THC, levels are calculated in consumable hemp products. This new calculation process “effectively bans” smokable hemp products, according to the Texas State Law Library. In a lawsuit filed in response, several hemp industry groups claimed the rules conflict with the “comprehensive regulatory framework governing hemp” established by the Texas Legislature in 2019. 

District Judge Maya Guerra Gamble granted the plaintiffs a temporary restraining order on April 10, which stopped the effective “ban” on hemp products from going into effect. The plaintiffs, who include the Texas Hemp Business Council and the Hemp Industry & Farmers of America, among others, will argue for a temporary injunction on April 23. If granted, the injunction would continue preventing these new rules from going into effect until the case is resolved.

“The court’s decision to temporarily block portions of these rules is an important step in ensuring that Texas agencies operate within the authority the Legislature has given them,” JR Johnson, one of the attorneys for the plaintiffs, wrote in a statement. “This case is not about policy. It’s about who gets to make it.”

The DSHS wrote in an email that it does not comment on pending litigation.

According to the petition, the new rules “do not implement the Legislature’s policy choices; they replace them.” In June, Gov. Abbott vetoed Texas Senate Bill 3, a bill passed by the Texas Legislature that would have broadly banned hemp products, because it could have conflicted with federal law. The petition cites how no edited version of the bill was passed in the two special legislative sessions called by the governor.

“We are supporting the governor and his call to action,” said David Sergi, an attorney representing the plaintiffs. “We are just really upset that the governor’s call to action has been hijacked basically to do what he originally vetoed.”

Andrew Alvarado, a lawyer representing the Hemp Industry & Farmers of America, a coalition of industry stakeholders, said the new rules banned a lot of different kinds of hemp, not just smokable hemp products.

“A misunderstanding in the public right now is that these new rules, while they certainly do apply to smokable hemp products, they also apply to all consumable hemp products,” Alvarado said. “For example, topical ointments and creams that are never meant to be smoked are legal under the current statute, but would now be illegal under the new rules.”

Alvarado said even if someone disagrees with the usefulness of hemp products, this lawsuit is working to preserve the separation of powers, which is crucial to the legal system. He said a change this “drastic” should go through the Texas Legislature rather than be implemented by state agencies.

“This isn’t about whether hemp products are good or bad for the community,” Alvarado said. “This is about whether the agency has overstepped and overreached the scope of its authority.”