TEXAS HEMP CONSTITUTIONAL ALLIANCE LAWSUIT

THC Alliance Lawsuit Summary

The Texas Hemp Constitutional Alliance amended lawsuit challenges several new hemp rules adopted by the Texas Department of State Health Services (DSHS).

This lawsuit is not primarily about hemp.

According to the lawsuit, it is about whether a state agency can change laws that were written by the Texas Legislature.

In 2019, the Texas Legislature passed House Bill 1325, creating the legal framework for consumable hemp products in Texas.

According to the lawsuit, that law already addressed THCA.

For example, lawmakers required licensed hemp growers to account for THCA during pre-harvest testing.

However, when lawmakers wrote the rules for manufacturers and finished hemp products, they used different language.

Instead of requiring the same testing method, the Legislature created three different ways manufacturers could legally demonstrate compliance:

• Pre-Manufacturing Testing

• Pre-Retail Testing

• Constituent Compliance

According to the lawsuit, none of these three compliance methods require the new “total delta-9 THC” testing standard created by DSHS.

Instead, the lawsuit argues that DSHS adopted an entirely new testing standard.

According to the lawsuit, that rule doesn’t simply add another testing requirement.

It materially changes one of the Legislature’s compliance methods, completely eliminates two others, and requires new testing at stages where the statutes themselves do not require testing.

The lawsuit argues that if the Legislature wanted manufacturers to use the same testing method required of growers, it knew exactly how to say so—because it already did in another section of Texas law.

Instead, lawmakers chose different language when writing the rules for manufacturers.

According to the lawsuit, those differences were intentional and must be given meaning.

A regulator cannot void a statute it is charged with implementing.

The lawsuit argues that DSHS exceeded its authority by replacing compliance methods created by the Texas Legislature with new requirements created through agency rulemaking.

In addition to the testing requirements, the lawsuit also challenges:

• Dramatic increases in manufacturer and retailer licensing fees, arguing they exceed DSHS’s authority and amount to an unconstitutional tax.

• New packaging and labeling requirements that the lawsuit argues conflict with the statutes passed by the Texas Legislature.

If the Texas Legislature wants to change Texas law, it has every constitutional right to do so.

The lawsuit asks a different question:

Can DSHS make those changes on its own through rulemaking, or must those changes come from the Texas Legislature? In our opinion, it CANNOT!