A federal judge denied an emergency motion for a temporary restraining order sought by hemp businesses and consumers, allowing the Texas ban on THC products to continue until the case is resolved.

U.S. District Judge Jeffrey Brown of Galveston declined to lift the ban Sunday, saying the two hemp retailers and a distributor who filed the lawsuit hadn’t sufficiently demonstrated irreparable harm from the ban on interstate commerce. The request for preliminary injunction, which allows for fuller briefing and an evidentiary hearing, remains pending before the court.

“A temporary restraining order is emergency relief, held to one of the toughest standards in federal law,” Andrea Steel, lead counsel for the hemp industry in this case, said in a news release. “Being denied one at this stage does not decide our case. We expected a hard fight, and we remain confident in the law.”

Steel said the state told the judge that the businesses face no concrete, imminent threat of enforcement, which she believes raises the question of why the ban was implemented if law enforcement doesn’t plan to uphold the new restrictions.

Last week, three members of the hemp industry sued the Texas Department of State Health Services; Attorney General Ken Paxton; and the Galveston County criminal district attorney and sheriff, arguing that classifying hemp-derived substances as illegal violates the 2018 federal farm bill, which removed hemp from the federal Controlled Substances Act.

The lawsuit argued that the reinstated definitions provide no delineation between lawful hemp and unlawful marijuana; that it’s preempted by the 2018 farm bill’s protections for the interstate hemp market; and that these classifications impose an unconstitutional burden on interstate commerce.

State officials banned at the end of last month several hemp-derived THC cannabis products, including those containing delta-8 and delta-10 THC variants, with possible punishment including jail time and fines. However, delta-9 THC, the most commonly sold THC product in Texas, will remain legal.

Now that THC variants are classified as a Schedule I drug, possession of illegal THC products can be treated as a state jail felony, which carries a punishment of 180 days to two years in prison and fines of up to $10,000, cannabis experts say.

Steel said Texas sits at the crossroads of several major national freight routes, and she believes they can prove the reinstated definitions are hurting not only Texas hemp but also hemp shipments that pass through to other states.

“Conflicting public descriptions of which hemp products may lawfully pass through Texas and which could expose someone to felony liability underscore the real-world uncertainty facing businesses and consumers,” Steel said.

Cannabis experts say if the ban is not removed, more than half of the THC products in stores might be removed from shelves.

“It’s a pretty big blow, and it’s recriminalizing a lot of cannabis products that have been completely legal and allowable in the state for many years, so we’re taking steps backwards toward prohibition,” Sarah Todd, media representative at Texas Cannabis Policy Center, previously told the Tribune.

The recent change stems from a Texas Supreme Court decision in May that allowed the Texas Department of State Health Services to reclassify all hemp-derived THC, except for low-dose delta-9 THC, as a Schedule 1 drug, prohibiting its possession and sale in the state. The ruling ended a 2021 injunction that paused DSHS from enforcing the new classification, which effectively allowed stores to stock different kinds of THC for the past five years.

The ban applies to all synthetically created THC forms, including delta-8, delta-10, THCP and THCA flower. The one exception will be delta-9 products with less than 0.3% THC by dry weight.

Delta-9, which naturally occurs in cannabis and is not typically synthetically derived, will remain the only THC option for Texas consumers because the federal 2018 farm bill legally defines hemp as cannabis containing no more than 0.3% delta-9 THC, and it does not list other cannabinoids.

This is the latest blow to the state’s hemp industry, whose year started with promises from lawmakers that hemp is here to stay but has been consumed with uncertainty over the last several months as flurries of court actions have ripped products off the shelves and then put them back on.

A statewide ban on the sale of smokeable hemp, such as flower buds and rolled joints, was supposed to go into effect March 31, but a court ruling has paused it, so delta-9 smokeable hemp will also still be available to consumers.

Texas banned the sale of vape pens containing THC in the last legislative session.

Various lawmakers have promised to continue their crusade against hemp this upcoming legislative session, making arguments against THC that harkened back to the days of the “Just Say No” campaigns of the ’80s regarding the risks of THC usage and its effects. Members of the committee used the frying-pan-and-brain analogy as an example of how these products cause mental health problems among young people.

Sen. Charles Perry, R-Lubbock, has already confirmed he will again file a bill to ban consumable hemp products at the next legislative session.

There are about 14,000 retail stores statewide that are licensed to sell consumable hemp, according to the Department of State Health Services.