Legal Battle Continues Over Sale of Hemp Products in Texas

The legal wrangling over which hemp products may be sold in Texas is continuing in two different Texas courts.

The Texas 15th Court of Appeals will consider oral arguments on Dec. 8 on its July move to reinstate Texas Department of State Health Services rules that restricted the majority of hemp-derived products sold by Texas retailers. District courts blocked some of those changes after they had gone into effect in March.

In addition to the types of hemp-derived products in question, the state's high cost of retailer licensing is also an issue. TDHS implemented new, higher annual retailer registration fees and manufacturing licenses. Hemp retailers balked at the $5,000+ per location registration fees and argued in court that the fees would put thousands of Texas hemp-product retailers out of business.

This week the Texas Hemp Constitutional Alliance and Green Nation, a Tyler hemp product manufacturer and retailer. are seeking relief in another district court arguing that the state agency overstepped its authority in adopting the restrictions earlier this year.

As reported by Austin's KXAN-TV, the lawsuit said "In its new rules, DSHS has unilaterally deigned to do what Texas lawmakers refused to do … to impose a general ban on a broad array of consumable hemp products (CHPs) currently marketed in Texas … as well as to impose stringent, crippling new testing, labeling, and packaging rules and drastically increased 'licensing' fees on manufacturers and retailers."

Under the TDHS product restrictions allowed to go into effect in July by the Court of Appeals, the sale of any THC products containing delta-6, delta-8, delta-10, or THCP was banned, effectively clamping down on much of what many Texas retail stores have been selling.

Retailers have utilized broadcast advertising to promote THC product availability after the Texas Legislature passed a 2019 bill that legalized the production, manufacture, and sale of industrial hemp products containing no more than 0.3% of delta-9 THC. The legislation also allows the sale of consumable hemp products containing cannabidiol (CBD).

What followed was an explosion of retail outlets selling such products and exploitation of a perceived loophole allowing the sale of products containing the other active THC compounds noted above.
The situation came to a head in the 2025 legislative session when Lt. Gov. Dan Patrick called for an outright ban on the sale of THC products. Lawmakers passed such a bill, but it was vetoed by Gov. Greg Abbott.

Abbott noted that SB 3, while "well-intentioned," would never go into effect because of "valid constitutional challenges." Instead, he called for the concern to be addressed more surgically by lawmakers in a summer special session, but that effort failed.

Texas voters had an opportunity this week to make their feelings known on the hemp-derived THC product ban by voting against proponents of such bans. Capitol denizens have widely expected the Texas Senate to pursue a complete ban when lawmakers reconvene for the 90th Texas Legislature in January.

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.