AUSTIN, Texas — A federal appeals court has upheld an Arkansas bill banning certain psychoactive hemp products, days after Texas Gov. Greg Abbott cited it in his decision to veto Senate Bill 3, which would have prohibited consumable hemp products containing THC across the Lone Star State.
Part of the governor’s veto of the bill cited the potential legal challenges the ban would have faced and concerns it conflicted with federal law.
In his veto, the governor mentioned Arkansas’ effort to ban THC in 2023, which has been tied up in the courts for years after local sellers filed lawsuits to challenge the bill.
The Arkansas law prohibited the sale of synthetic cannabinoids derived from hemp, such as delta-8 and delta-10 THC, and any hemp-derived delta-9 THC products that contain more than 0.3% THC “on a dry weight basis.” THC, or tetrahydrocannabinol, is the predominant chemical in marijuana that gets people high.
“What Arkansas did is they banned hemp derived above 0.3% THC, whereas Texas was nothing at all. They have that benchmark of that 0.3%, which is in the farm bill,” cannabis attorney Michelle Donovan said. “Anything more than 0.3% THC is considered illegal marijuana, and if you’re going to possess that, you would possess it either under a medical marijuana license or card as a patient.”
Four hemp companies sued to block the law from taking effect. During his first term in 2018, President Donald Trump signed the Farm Bill, which set national standards for hemp and its production and allowed farmers to produce hemp in the U.S., which critics say has led to the proliferation of intoxicating hemp products.
Generally speaking, legal THC can be accessed in several forms, from the actual cannabis plant to THC-infused sodas.
The Arkansas companies argued that the U.S. Constitution’s Supremacy Clause prohibits a law like the one in Arkansas because the 2018 federal farm bill prohibits states from enacting laws that restrict the transportation or shipment of hemp products.
This week, a three-judge panel in the Eighth Circuit Court of Appeals ruled that the Arkansas law did not impact the transportation of cannabis plants through the state, meaning it did not violate the 2018 Farm Bill.
The Eighth Circuit Court of Appeals sent the Arkansas case back to a district court for other legal challenges to play out, but while that process is underway, Arkansas officials will now be allowed to enforce the state’s ban.
“When you line up the 2018 farm bill in conjunction with the Arkansas State Hemp Bill, they’re in a line, which is different from Texas, because they don’t align,” Donovan said. “That’s why there needs to be more regulation as to even setting those parameters in place for Texans.”
In a social media post on Tuesday night, Gov. Abbott pointed out that the Arkansas law differs from Senate Bill 3 in legally consequential ways. He noted that the Arkansas law did not ban “any amount” of a cannabinoid, allowed hemp farming consistent with federal law, and carved out interstate transportation.
“Even though the Arkansas law was not plagued with the same legal defects as the Texas bill, it still was unenforced for two years and will be further tied up in court for years to come,” Abbott wrote. “I vetoed the Texas bill because we do not have time for a protracted legal fight. We must act now to keep Texas children safe.”
SB 3 was a priority bill for Lt. Gov. Dan Patrick, who led the effort to pass the ban in both the Texas House and Senate during the regular legislative session. Patrick addressed the Arkansas case during a press conference on Monday before the ruling.
“We believe the Eighth Circuit will stand with Arkansas,” Patrick said. “If that happens while we’re going through this charade, then what is the governor going to say? ‘Oh, I guess I was wrong about Arkansas.’ But even if Arkansas loses, it doesn’t matter; Arkansas does not impact Texas.”
After the decision, Patrick took to social media to congratulate Arkansas Gov. Sarah Huckabee Sanders and Attorney General Tim Griffin, arguing that it rendered the governor’s veto moot.
“It won’t be long before 8,000 smoke and vape shops will be out of business in Texas,” Patrick wrote. “All we have to do is pass SB 3, just like we passed during the regular session.”
Senate Bill 3 would have banned the sale of consumable products containing THC, the psychoactive compound found in cannabis. The bill would only allow for the sale of CBD and CBG, cannabis compounds that won’t get users high.
The products began appearing after Texas approved a farming bill in 2019. House Bill 1325 established the Texas Health and Safety Code Chapter 443. It allows for the sale of consumable hemp products across the state that do not exceed 0.3% delta-9 THC. That law has led to the sale of hemp-derived delta-8 THC and products that contain delta-9 THC at 0.3% of the total weight, which can still be an intoxicating amount at a high ratio.
Abbott has called state lawmakers back to the Capitol for a special session and is pushing them to consider stricter regulation of the industry rather than an outright ban. Hemp industry leaders have advocated for age limits or potency caps to regulate the market instead. In his veto, Abbott encouraged lawmakers to consider tightening testing, labeling and packaging requirements and ban marketing to minors.
“It’s important that each state sets up a regulatory and compliance framework with individuals that understand how the product needs to be regulated because, at the end of the day, each state is concerned with the health, safety, and welfare of its citizens and buying this product,” Donovan said.
Last spring, Arkansas’ attorney general led a coalition of 21 attorneys general who called on Congress to revisit and clarify certain provisions of the 2018 Farm Bill. Those AGs want lawmakers to address what they called “glaring vagueness” in the 2018 bill that led to the proliferation of intoxicating hemp products. They want Congress to affirm the authority of states to regulate things like THC.
This week, a United States House Committee advanced a federal spending bill that would remove the loophole that allows businesses like smoke shops and gas stations to sell THC products. The House Appropriations Committee approved the Fiscal Year 2026 Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act. The federal spending bill would require the FDA to create a task force to look into hemp-derived products and make recommendations for THC regulation and safety. That bill still has to be approved by the full United States House of Representatives and pass through the United States Senate.
“If we’re keeping the percentage as anything, a higher than point 3% is THC, that’s great, but then how as the state do we regulate that since the state would have to pass their laws,” Donovan said. “Even though it’s legal federally, the state still has to create a framework to enforce it. If they choose to do nothing, there’s no enforcement because there’s nothing to have jurisdiction over to enforce.”
In his veto proclamation, Gov. Abbott put forward a list of regulations that the Texas Alcoholic Beverage Commission already enforces on alcohol products that he wants state lawmakers to consider for THC products.
“When there’s no regulation, you can sell this stuff at gas stations, then children can buy it because it’s not regulated,” Donovan said. “If it’s not regulated, it’s not enforced, and that’s the problem. So you have to create a regulatory framework to enforce it.”
Texas state lawmakers will return to the Capitol for the special session starting July 21.
