The injunction regarding the rules challenged in the THBC vs DSHS lawsuit remains in place. This means THCA products are currently legal to sell and transport, license fees are reverted to previous rules, and the fine violations are not active.

On May 15th, the State filed its response to our Rule 29.3 motion, which was submitted in response to the State’s appeal of the temporary injunction granted in the THBC vs. DSHS case. THBC filed a response on May 21st at the end of the day. Now, we are waiting for the appeals court to determine whether the injunction remains fully in place, is narrowed to apply only to the named plaintiffs, whether there are changes to the injunctive relief (meaning what is covered now continues to be covered), or whether it is lifted entirely while the case proceeds.

A summary of the State’s response is below:

  • The State is asking the appeals court to overturn the temporary injunction and allow DSHS to immediately enforce the challenged hemp rules again.
  • The State argues DSHS has full authority to regulate hemp products, including:
    • Using “total THC” testing that includes THCA conversion (post-decarboxylation testing)
    • Restricting non-compliant hemp from entering Texas for processing
    • Imposing increased licensing and registration fees
    • Enforcing the penalty structure in the rules
  • The State heavily relies on the recent Texas Supreme Court ruling in the Sky Marketing case, arguing courts should not interfere with agency authority over intoxicating hemp products.
  • The State claims the THCA testing standard is not new and is consistent with:
    • Federal hemp regulations
    • Texas Department of Agriculture hemp rules
    • The 2020 Texas Hemp Plan
    • Governor Abbott’s Executive Order GA-56
  • Regarding fees, the State argues the increases are necessary to fund more aggressive enforcement efforts, including increased inspections, lab testing, and coordination with DSHS, DPS, and TABC.
  • The State also argues hemp businesses do not have a protected constitutional right to sell intoxicating THC products and that economic harm to businesses does not outweigh the State’s claimed public safety interests.
  • Importantly, the State argues the trial court exceeded its authority by applying the injunction statewide instead of limiting relief only to the named plaintiffs.
  • The State does acknowledge the broader APA challenge can continue through litigation, but argues the rules should remain enforceable while the case proceeds.

We will update again as soon as we hear from the courts regarding this matter.