By Christopher Pallanch and Alex Tinker
So, can you ship hemp across state lines now? Not without risk.
The 2018 Farm Bill makes it possible to produce hemp in some states without violating federal law. Nevertheless, uncertainty remains for the hemp industry, as shown by recent efforts to ship hemp from one state to another.
First, the Farm Bill allows states to set their own regulations on the production and sale of hemp—meaning that a state may ban the production of hemp outright if it wants to do so. For example, some states, including Idaho, have laws on the books saying that a plant with any detectable amount of THC in it constitutes “marijuana” under state law. In other words, while the 2018 Farm Bill makes it legal to produce "hemp" (i.e., Cannabis sativa L. with a THC concentration of not more than 0.3% on a dry weight basis, including cannabidiol (CBD)), Idaho takes the position that, as of now, hemp still may not be produced or sold in that state without potentially running afoul of Idaho's criminal laws.
Second, there is confusion around whether states may restrict the transportation of hemp. The 2018 Farm Bill provides that "[n]o State or Indian Tribe shall prohibit the transportation or shipment of hemp or hemp products produced in accordance with subtitle G of the Agricultural Marketing Act of 1946…through the State or the territory of the Indian Tribe, as applicable." The state/federal division of duties was meant to be clear: Congress left it to the individual states to determine whether—and how—hemp may be produced within a particular state, yet Congress also prohibited individual states from disrupting the shipment of hemp from one state to another.
Nevertheless, some states—including Idaho and Oklahoma—have taken the position that shipping hemp across state lines now is still premature. In a case currently pending in Idaho, the state has taken the position that subtitle G requires either federal approval of a state-specific-hemp-production-plan, or a hemp-production-plan established by the Department of Agriculture. Because no state plans have yet been approved by federal authorities since the enactment of the Farm Bill, and because no plan has yet been established by the USDA, Idaho views interstate shipments of hemp across its borders as illegal. In fact, Idaho authorities recently arrested the driver of a vehicle containing 6,701 pounds of hemp en route from Oregon to Colorado (and impounded the hemp). Similarly, four men were arrested in Oklahoma and charged with drug crimes for allegedly transporting approximately eight tons of hemp from Kentucky to Colorado.
Congress may well have intended to protect hemp activity conducted under current state plans that were adopted as pilot programs under the 2014 Farm Bill. After all, Congress included a budget rider in 2018 that prevents the U.S. Department of Justice from using appropriated funds to prohibit the transportation, processing, sale, or use of hemp grown pursuant to the 2014 Farm Bill. Even so, under the letter of the 2018 Farm Bill, there is not yet a mechanism to stop states from enforcing their own state laws that treat "hemp" just like "marijuana."
It's expected that both federal and state plans will soon be adopted and regulations clarified, but until then, shipping hemp, or hemp products, across state lines still carries risk.
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