Regulation Or Prohibition? The Fight For Texas Hemp -

OP-ED by the Texas Hemp Business Council (Written on 8/25/2026)

Texas’ hemp industry has always supported smart, responsible regulation. Consumer safety, product transparency, and clear rules are not just good policy; they are essential to building a sustainable market.

But the recently adopted rules by the Texas Department of State Health Services (DSHS) miss that mark, creating confusion, imposing burdensome requirements and, in some cases, stepping beyond what we believe the agency has the authority to do under Texas law.

The rollout of these rules has been as concerning as their substance. Businesses were given limited time and insufficient guidance to comply with sweeping regulatory changes affecting nearly every corner of the hemp supply chain. While framed as a public health effort, several provisions raise serious legal and practical concerns.

Among the most problematic are changes to how Delta-9 THC is calculated, restrictions on interstate transportation, significant increases in licensing fees, and new enforcement provisions and penalties. Taken together, these rules risk pushing legitimate businesses out of the market while doing little to address the bad actors who have given the industry a black eye.

Why THBC Took DSHS to Court

This is precisely why the Texas Hemp Business Council (THBC), alongside industry partners, decided to file a lawsuit. Litigation was not our first choice, but it became necessary when the new rules went beyond what we believe DSHS has the authority to do under Texas law.

The lawsuit challenges several parts of the new DSHS rules, including:

The new Total THC calculation, which accounts for THCA and effectively prohibits much of the THCA flower currently sold in Texas;
Restrictions on transporting certain hemp materials into Texas for manufacturing;
Significant increases in licensing fees; and
New enforcement provisions and penalties

The case has moved quickly since it was filed:

April 7: THBC and other industry plaintiffs filed suit against DSHS.
April 10: A Travis County district court issued a temporary restraining order blocking enforcement of several challenged provisions.
May 1: The district court granted a temporary injunction, extending that protection while the case moved toward trial.
The State appealed: The appeal prevented the case from moving forward to its previously scheduled July trial date.
May 7: The Fifteenth Court of Appeals temporarily reinstated the injunction.
June 5: The appellate court lifted the injunction, allowing DSHS to enforce the challenged rules while the appeal continues.
June 26: The court denied THBC’s request to reconsider and reinstate the injunction.
August 14: THBC filed its merits brief with the Fifteenth Court of Appeals, defending the trial court’s decision and asking the appellate court to reinstate the injunction.

Where things stand today: The challenged DSHS rules remain in effect while the appeal is pending. THBC is asking the Fifteenth Court of Appeals to affirm the trial court’s temporary-injunction order, reinstate the injunction and return the case to the district court so we can continue toward a final trial. The state has until September 3rd to respond to the recent filing unless they request an extension.

The courts have not issued a final ruling on whether the challenged rules are lawful. For businesses, that means complying with rules today that are still being challenged in court.

The Sky Marketing Decision and the New Controlled Substances Schedule

While the THBC lawsuit continues, a separate case has also changed the legal landscape for hemp businesses in Texas.

In May, the Texas Supreme Court ruled in favor of DSHS in DSHS v. Sky Marketing, a case involving the agency’s 2021 decision to classify certain tetrahydrocannabinols, including delta-8 THC, as controlled substances. Likely not by accident, this decision came on the same day we were granted the injunction for the THBC vs DSHS lawsuit.

Following that decision, DSHS reinstated its 2021 language addressing tetrahydrocannabinols and “marihuana” extract. The new schedule took effect July 31.

The change has created significant confusion over what is and is not prohibited. Here is what businesses should understand:

Delta-8 THC is now treated as a controlled substance in Texas. DSHS has stated that only naturally occurring trace amounts of delta-8 THC in the hemp plant are exempt. The result is a bizarre disparity: possession of a delta-8 product can now result in a felony charge, while possession of small amounts of marijuana remains a misdemeanor.
The scheduling action applies to other affected tetrahydrocannabinols, including THC isomers that fall within the reinstated controlled-substance definitions.
THCA is not specifically listed in the July 31 scheduling action. THCA, or tetrahydrocannabinolic acid, is different from delta-8 THC and the THC isomers at issue in the scheduling action.
Texas’ statutory definition of hemp expressly includes acids. State law defines hemp to include the plant and its derivatives, extracts, cannabinoids, isomers and acids, provided it falls within the statutory delta-9 THC limit.

THCA is instead at the center of a separate fight over DSHS’ new Total THC rules as mentioned earlier in this article. Those rules require THCA to be factored into the calculation used to determine whether a consumable hemp product complies with the state’s THC limit.

The July 31 controlled-substances schedule and the new Total THC rule should not be confused with one another. Delta-8 and other THC compounds covered by the scheduling action present one legal issue. Whether DSHS can use THCA to determine whether a product falls outside the statutory definition of hemp presents another, and that question remains part of THBC’s ongoing litigation.

DSHS has repeatedly failed to clearly communicate these regulatory changes to businesses and the public. As a result, the controlled-substances schedule and the separate Total delta-9 THC rule have frequently been conflated in news coverage, creating widespread confusion among consumers, business owners and even law enforcement about the difference between a controlled substance under Texas law and a hemp product DSHS considers noncompliant under its new rules.

More Hemp Lawsuits Are Now Moving Through the Courts

THBC’s case is no longer the only lawsuit challenging recent state action against the hemp industry. Several cases are now moving through state and federal courts, approaching the issue from different legal angles.

Federal challenge: Two Texas hemp retailers and a distributor filed suit in federal court challenging the state’s new classification of delta-8 THC and other non delta-9 THC isomers on the list of controlled substances. Among other claims, the plaintiffs argue that the state’s actions conflict with federal hemp law and improperly burden interstate commerce.

A federal judge denied the plaintiffs’ request for an emergency temporary restraining order. That ruling did not resolve the lawsuit itself. Their request for a preliminary injunction remains pending.

Separate Travis County challenge: Four hemp retailers filed another lawsuit against DSHS in state court, arguing that the agency exceeded its authority by classifying hemp-derived substances as illegal. The plaintiffs have also sought temporary relief from enforcement.

The lawsuits do not all make the same arguments, but they are a reflection of the uncertainty businesses are facing. Questions that affect thousands of businesses, employees and consumers are increasingly being decided through agency action and litigation rather than clear direction from the Texas Legislature.

The Federal Fight Isn’t Over Either

Texas businesses are dealing with all of this while facing another potentially enormous change at the federal level.

Last year, Congress included new hemp restrictions in a federal appropriations bill signed by President Trump. Those provisions would replace the current federal framework with a much broader Total THC standard that could remove the vast majority of today’s consumable hemp products from the federally lawful hemp market – including full spectrum CBD products.

Those restrictions are currently scheduled to begin taking effect on November 12th.

However, there has been some progress. The U.S. Senate recently passed a government funding bill that would grant a 4 week extension and delay most of the new federal hemp restrictions until December 11, while allowing restrictions on certain synthetic hemp derivatives to take effect in November.

The Senate also rejected an effort to remove the delay by a 61-32 vote, showing meaningful bipartisan support for giving Congress more time to find a solution.

Some members of the U.S. House have already indicated they will attempt to remove the extension, again invoking “protecting children” and “public safety” to justify sweeping prohibition. “Protecting children” should be a shared priority, but it should not be used as a political shield for policies that would eliminate an entire legal industry while protecting the interests of industries that stand to benefit from its disappearance.

A one-month extension will not solve the underlying problem. What it does provide is more time for Congress to pursue a workable regulatory framework instead of allowing sweeping restrictions on currently lawful hemp products to take effect with little consideration for the farmers, manufacturers, retailers and consumers who will be affected.

The Fight for Texas Hemp Is Far From Over

Texas did not enter this debate with an unregulated hemp market. Testing, labeling and licensing requirements were already in place, but enforcement was inconsistent. The industry spent years asking lawmakers for stronger age restrictions, packaging requirements and meaningful enforcement against bad actors. Instead, businesses are now facing sweeping new requirements and restrictions that we believe go beyond DSHS’ authority.

The consequences are already being felt. Businesses are closing, jobs are being lost and Texans are losing access to products they have legally purchased and relied on for years. This is an industry that generates $5.5 billion in annual sales, supports more than 53,000 Texas jobs, pays $2.1 billion in wages and generates roughly $268 million in sales-tax revenue. Driving these businesses out of Texas means losing much of that economic activity along with them.

And this fight will not end in November.

Regardless of what happens with the federal hemp restrictions, we expect another attempt to ban hemp products when the Texas Legislature returns in January. Senator Charles Perry, who led the effort to pass a ban during the last legislative session, has already indicated that he intends to continue the fight.

We cannot wait until January to get involved. The lawsuits and federal fight are significant, but the future of hemp in Texas will ultimately depend on whether businesses, consumers and advocates are willing to show up and make their voices heard.

If you own a hemp business, work in this industry, use these products or simply believe Texas adults should have access to a safe, regulated hemp market, we need you in this fight.

What You Can Do

The future of this industry will not be decided by lawsuits alone. It will be decided by the people who show up, speak out, vote and support the organizations and businesses willing to fight for it.

Here are a few ways you can help:

Support the organizations doing the work. THBC’s legal, legislative and public advocacy efforts require significant resources. Businesses can become THBC members, and both businesses and consumers can donate to support the fight. You can also help without spending a dollar: follow THBC on social media, share our posts and help get accurate information in front of more people.
Become a THBC Member | Donate to THBC
Contact your elected officials—and make it personal. Your state and federal representatives need to hear from the people who will actually be affected by these policies. Tell them why you use hemp, how your business or job depends on the industry, or what losing access would mean for you. Personal stories carry far more weight than form letters alone.
Pay attention to who is fighting for the entire industry—and who isn’t. Some companies and competing industries are lobbying for policies that would preserve narrow portions of the hemp market while eliminating others. That includes efforts to protect hemp beverages while allowing other hemp products to be banned. Consumers and businesses should know where the brands they support stand and spend their money accordingly.
Register to vote and show up for the 2026 midterm election. Hemp policy is ultimately decided by elected officials. Find out where candidates stand before you vote and support candidates who believe Texas adults should continue to have access to a safe, regulated legal hemp market.
View THBC’s 2026 Texas Voter Guide
Tell your story publicly. If hemp has helped you, your family or your business, talk about it. Post your story on social media, tag THBC and tag your elected representatives. Lawmakers hear plenty from lobbyists. They also need to hear directly from the Texans whose lives and livelihoods will be affected by their decisions.
Help educate the people around you. There is still an enormous amount of misinformation surrounding hemp. Share credible information with your customers, employees, friends and family. Explain what responsible regulation looks like and why regulation does not have to mean prohibition.

The hemp industry has won difficult fights before because businesses, consumers and advocates refused to sit on the sidelines. We will need that same level of participation again. Whether you own a hemp company, work in the industry, use these products or simply believe adults should have the freedom to make their own choices, there is a role for you in this fight.

If the thief is watching this post, we would appreciate the stolen items being returned to the Texas Hemp Business Council.

Otherwise, we are asking for help identifying this individual so we can make sure he is banned from all future events, hemp stores, and so other Austin businesses can be aware of who the thief is that walks among us. If he’s willing to steal from a fundraiser, he has no limits. DM us if you have information.

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