A coalition of Texas hemp businesses filed suit this week against the state's Department of State Health Services, challenging new regulations that count THCA toward the legal THC limit and impose stricter testing requirements.
The Texas Hemp Coalition and Hometown Hero CBD, a Austin-based manufacturer, argue the rules exceed the department's statutory authority and contradict federal hemp law. The lawsuit, filed in Travis County district court, seeks to block enforcement of regulations that took effect earlier this year.
"These rules fundamentally misinterpret what Congress intended when it legalized hemp," said Lukas Gilkey, CEO of Hometown Hero CBD, in a statement. "We're not talking about marijuana here. We're talking about products that have been legal under federal law since 2018."
The THCA Question
At the heart of the dispute is how states measure THC potency in hemp products. Federal law defines hemp as cannabis containing no more than 0.3% delta-9 THC by dry weight. But Texas regulators now require that THCA, the non-intoxicating acid form of THC found in raw cannabis, be counted in that calculation.
When heated, THCA converts to delta-9 THC through a process called decarboxylation. Texas officials argue this means THCA should count toward the legal limit. Hemp advocates counter that the federal definition specifically references delta-9 THC as measured, not potential THC after conversion.
The distinction has major implications. Many hemp flower products contain low delta-9 THC but higher THCA levels. Under the new Texas rules, these products would exceed the legal limit despite testing compliant under federal standards.
Industry Pushback
The lawsuit also challenges new testing protocols that require more frequent product sampling, stricter laboratory standards, and additional labeling requirements. Businesses must now pay higher licensing fees and submit to random inspections.
Texas hemp businesses have operated in a gray area since the state legislature declined to pass comprehensive regulation in recent sessions. The health department stepped in with emergency rules last year, citing concerns about intoxicating hemp products marketed to minors.
But industry groups say the regulations go too far. The Texas Hemp Coalition represents over 200 businesses across the state's hemp supply chain, from farmers to retailers. Annual hemp sales in Texas exceed $500 million, according to industry estimates.
Regulatory Whiplash
Texas is not alone in grappling with THCA regulations. Minnesota, Louisiana, and Oregon have adopted similar rules counting THCA toward THC limits. Other states, including Colorado and California, measure only delta-9 THC as written in federal law.
The conflicting state approaches create compliance headaches for multi-state hemp operators. Products legal in one state may violate regulations across the border, even when both states claim to follow federal hemp guidelines.
"We're seeing regulatory whiplash across the country," said Jonathan Miller, general counsel for the U.S. Hemp Roundtable. "States are interpreting the same federal law in completely different ways."
What's Next
The lawsuit asks the court to declare Texas's THCA counting rule invalid and enjoin the health department from enforcing it. A hearing on the plaintiffs' request for a temporary injunction has not yet been scheduled.
Texas Attorney General Ken Paxton's office will defend the regulations. Paxton has previously expressed concern about intoxicating hemp products, particularly those marketed as legal alternatives to marijuana.
The case could take months or longer to resolve. In the meantime, Texas hemp businesses face a choice: reformulate products to meet the new standards, risk enforcement action, or exit the market entirely.
Several retailers have already stopped carrying hemp flower products rather than navigate the new testing requirements. Others are exploring CBD-only product lines that avoid the THCA issue altogether.
The outcome may influence how other states approach THCA regulation. With Congress unlikely to clarify the issue soon, state courts may determine the future of the hemp market.
This article is based on original reporting by mjbizdaily.com.