Hemp flower, extracts and other smokable forms of cannabis are no longer allowed to be sold in Texas as of Tuesday.
The change comes less than a month after the Department of State Health Services (DSHS) adopted sweeping new regulations for the state’s booming hemp industry.
But the new rules only apply to retailers and manufacturers. State law hasn’t changed, meaning possession of smokable hemp products remains legal. Austin police say their approach hasn’t changed either.
That leaves open a big question for consumers: if stores in Texas can’t sell these products anymore, can people still order them online?
State regulators say no. Cannabis attorneys say yes, but acknowledge it’s a legal gray area.
“There is no carve out for mail order,” DSHS spokesperson Lara Anton said.
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Anton said any product “introduced into commerce in this state” — including items shipped directly to consumers — must comply with the regulations.
But attorneys who specialize in cannabis law question how that could actually be enforced.
“Whether anyone can be criminally prosecuted for buying products from out of state is still going be doubtful and difficult,” said Susan Hays, a cannabis attorney and lobbyist. “Most prosecutors, many cops, certainly the majority of the people living in Texas are over this idea of criminalizing a plant.”
Why are sales of smokable cannabis banned?
Hemp is simply a legal term used to describe cannabis with less than 0.3% Delta-9 THC, the plant’s primary psychoactive ingredient. Anything above that limit is considered illegal marijuana.
But cannabis contains dozens of other mind-altering compounds, including THCA, which occurs in much higher amounts and converts to Delta-9 when heated or smoked.
The rules change how THC levels are counted by redefining THCA as 88% Delta-9. This new “total THC” calculation effectively bans most smokable hemp products, which industry estimates say make up about half the Texas market.
Federal law adds another layer of complexity. The 2018 Farm Bill legalized hemp nationwide and explicitly prohibits states from interfering with the transportation or shipment of hemp.
“I would venture to say that anybody who is wanting to place an order for a product that will no longer comply with the new rules will probably not have any qualms finding a company to ship it to them from out of state,” said attorney Andrea Steel with The Banks Law Firm in Houston.
Hemp edibles and drinks will remain legal in Texas. Because they weigh more, staying under the 0.3% Delta-9 THC cap is much easier than with smokable products.
APD won’t confiscate cannabis in hemp packaging
In Austin, a senior police official said enforcement practices have not changed.
“It’s a very tricky thing,” said Lt. Patrick Eastlick, who oversees APD’s Tactical Intelligence Division. “No one, an officer or even anyone highly trained, can tell the difference between the plant material to be able to distinguish between hemp and marijuana.”
Officers rely on product packaging to distinguish legal hemp from illegal marijuana.
If someone has the packaging showing Delta-9 THC content under 0.3%, they can keep it. If not, officers may confiscate the product.
But even with marijuana, Austin police typically don’t file charges for small amounts unless narcotics felonies or violent crimes are involved.
“For just a small amount of marijuana or hemp that we’re not able to determine, they’re just gonna be seized and disposed of through our policies and procedures,” Eastlick said.
The Texas Department of Public Safety, which tests cannabis for law enforcement agencies, did not respond to requests for comment.
Businesses face compliance crunch
The Department of State Health Services sent notice of new regulations in an email on March 11 — just 20 days before the the rules took effect. The timeline left businesses scrambling to comply.
Any business selling consumable hemp products — including bars that offer THC drinks — will face steep new costs. Annual fees for retailers jump from $150 to $5,000 per location. Manufacturers will pay $10,000 per year, up from $250.
By comparison, alcohol distillers must pay the Texas Alcoholic Beverage Commission a licensing fee of $3,000 every two years.
The new hemp rules include stricter testing standards and require products be sold in resealable child-resistant packaging with more detailed labels. Companies must develop written recall procedures and track consumer complaints.
“The transition has just been way too fast,” said Brandon Tijerina, owner of ATX Organics, which both manufactures and sells consumable hemp products. Tijerina said flower and concentrate accounted for about 75% of his business. He was frustrated about the prospect of those sales going to other states.
“Taxpayer money, all of our economic money that we’ve used to grow this industry is just going to be funneled into other states, which is just ridiculous,” Tijerina said. “You’re killing jobs. You’re destroying industries. It’s a lot of damage, very detrimental.”
Legal challenges are expected soon
The industry is planning to fight back in court but had to wait until the rules took effect to file suit.
“We have to be able to show harm,” Texas Hemp Business Council president Cynthia Cabrera explained last week in a YouTube video.
The Texas Hemp Business Council plans to seek an immediate court-ordered pause on the regulations.
Cabrera hopes a temporary restraining order will be granted within 48 hours. That would give lawyers a couple weeks to make the case for a longer-term, temporary injunction while the case weaves its way through the Texas court system.
Hometown Hero, an Austin-based hemp business, obtained a temporary injunction in 2021 to block DSHS from banning Delta-9 by reclassifying it as a Schedule I drug. That temporary injunction remains in effect.
Cabrera, who also works as a legal and policy strategist for Hometown Hero, indicated that the question of shipping hemp products across state lines will be part of a package of claims brought against the state.
“This is a very complicated case,” Cabrera said. “This one is about usurious fees. It’s about paperwork requirements and not having the time to get them straight. It’s about the redefining total THC. It’s about interstate commerce. It’s about interrupting the ability to manufacture. It’s about a lot of things.”
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