Texas says new rules banning sales of smokable hemp also apply to out-of-state companies. But cannabis lawyers question the rules and Austin police won't confiscate hemp if you have the packaging.
Lucky Elk, based in Asheville, North Carolina, is among dozens of online hemp stores that offer products by mail. Hemp flower, extracts and other smokable forms of cannabis are no longer allowed to be sold in Texas as of Tuesday.
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?"There is no carve out for mail order," DSHS spokesperson Lara Anton said. Anton said any product"introduced into commerce in this state" — including items shipped directly to consumers — must comply with the regulations."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."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 is limit is considered illegal marijuana."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.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."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.ATX Organics, which both manufactures and retails consumable hemp products, says smokable flower and extracts accounted for about 75% of their sales. 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. 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."The Texas Supreme Court before a January hearing on a DSHS rule attempting to ban Delta-8. Some of the same people involved in this legal battle are expected to file suit over the state's new regulations governing consumable hemp products. The industry is planning to fight back in court but had to wait until the rules took effect to file suit.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-8 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."Nathan Bernier is the transportation reporter at KUT. He covers the big projects that are reshaping how we get around Austin, like the. He also focuses on the daily changes that affect how we walk, bike and drive around the city. Got a tip? Email him at nbernier@kut.org. Follow him on X
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