Judge blocks new state rules that banned sale of smokable hemp

A Travis County state district judge has temporarily lifted a state ban on the sale of smokeable hemp products, part of more stringent state rules limiting hemp product sales, which went into effect March 31.

Judge Maya Guerra Gamble issued a temporary restraining order blocking implementation of most of the state's new hemp rules but left in place a provision allowing the State of Texas to charge higher licensing fees.

Gamble set an April 23 hearing to fully consider the temporary restraining order.

The Texas hemp industry raised concerns about the Texas Department of State Health Services (DSHS) rule changes, because the new rules would have banned some of the more popular hemp products and imposed significant licensing fee hikes which would have shut down many smaller vendors.

The industry filed a suit against the State of Texas on Tuesday and Gamble's court ruling was issued Friday afternoon.

The Texas Supreme Court is expected to rule soon on an earlier suit by the hemp industry stemming from DSHS' 2021 classification of hemp compounds containing delta-8

THC as illegal. The SCOTEX ruling could well have an impact on the newer case because both lawsuits challenge the state agency's ability to make changes without legislative or public approval.

Additionally, congressional legislation was filed earlier this year to delay the implementation of the 2025 federal provision limiting the sale of hemp-derived products. The outright THC ban was part of last November's stop-gap spending measure signed into law by President Donald J. Trump.

The provision would go into effect this fall, but HR 7567 would delay it until 2028 to allow the industry time to adjust. The bill also seeks to relieve industrial hemp growers of certain federal regulatory burdens. The measure was approved by the House Agriculture committee in February.

TAB Guidance on CBD-Product Advertising

While the sale and advertising of certain types of THC and CBD-related cannabis products is currently legal, TAB reminds stations that the existing regulations that allow it are quite specific. Stations accepting such advertising do so at their own risk and therefore must perform the necessary due diligence or risk the consequences of advertising an illegal product.

TAB's state counsel Jackson Walker LLP has prepared an advisory for TAB members on advertising marijuana and hemp-based CBD products under current Texas law.

View TAB's CBD Advertisement Legal Advisory.

The main takeaways from the advisory are:

• Marijuana remains illegal in almost all contexts, and only three entities are authorized to dispense it for medical use under the Texas "compassionate use" law. Broadcasters should deal only with those entities and should not air advertisements that depict the consumption of marijuana.
• Broadcasters should avoid advertisements depicting consumption, suggesting illegal drug use, targeting children, or promising miraculous medicinal results that have not been adopted by the FDA.
• Broadcasters should avoid advertisements for CBD products derived from any source other than legal hemp.
• Broadcasters should also ask advertisers to warrant the purity and THC content of their products-only hemp-derived products with Delta-9 THC in concentrations less than 0.3% are legal.
• Broadcasters should only air advertisements for CBD processed by licensed manufacturers, from hemp grown by licensed producers, and sold by registered distributors. Where possible, broadcasters should obtain appropriate representations, warranties, indemnification, or other certifications from prospective advertisers as to those issues.

Questions? Contact TAB's Michael Schneider or call (512) 322-9944.