Constant Confusion- Shipping Hemp Across State Lines
Perpetual confusion plagues the question of the legality of CBD in the context of interstate commerce. Such is the sole domain of the federal government, which, to this day, continues to sabotage the legal cannabis industry by refusing to amend the Controlled Substances Act (CSA) substantially so as to reflect obvious public sentiment.
The befuddling state of affairs surrounding the legality of CBD throughout all 50 states is compounded by the fact that Agencies and Acts which are the product of the Federal government, have in fact taken action to quell the confusion, albeit with limited success.
Most notably, the United States Department of Agriculture (USDA), through its 2018 Farm Bill (“Agriculture Improvement Act of 2018”), attempted to sever certain aspects of the cannabis sativa plant from the rest of the controlled substances in the CSA. The USDA’s Farm Bill removed “hemp” from the CSA definition of “marijuana,” and expressly excluded THC in “hemp” from scheduling under the CSA. However, the Bill also delineates that only cannabis sativa plants that contain less than 0.3% THC qualify as “hemp”. Thus, the farm bill took cannabis sativa off of the CSA’s scheduled drugs list, but only if that cannabis plant contains .3% or less THC by volume.
This move has led to even more confusion. It misled consumers into thinking that there was no prohibitions whatsoever on the sale and processing of hemp and hemp-related products. However, there are restrictions, and they must be followed.
Take, for example, the case of Big Sky Scientific LLC v. Jan Bennetts. In that case the Idaho State Police seized thousands of pounds of industrial hemp (cannabis sativa containing less than .3% THC) and charged the driver of the truck with felony drug trafficking. Idaho police also filed a civil complaint in state court against the hemp processor. The Idaho civil case was stayed pending the resolution of criminal proceedings. In turn, the hemp processor, Big Sky Scientific LLC, filed a motion for a preliminary injunction in federal court demanding that Idaho State Police turn over the hemp and desist from seizing future shipments, arguing that the 2018 Farm Bill protects the interstate shipment of hemp and hemp derivatives. The District Court denied Big Sky’s motion holding that the protections of the 2018 Farm Bill are not afforded to hemp that is produced outside of a USDA-approved program. In other words, since the USDA has not yet issued regulations, states like Idaho could seize the hemp.
Although, there is hope. The USDA recently promulgated an interim rule (7 CFR Part 990, Establishment of a Domestic Hemp Production Program) which outlines the process States and Tribal Lands must follow to create a regulatory program that is in line with the desires of the federal government. Section VII of that interim rule states “Nothing in this rule prohibits the interstate commerce of hemp. No State or Indian Tribe may prohibit the transportation or shipment of hemp produced in accordance with this Rule [and the 2018 and 2014 Farm Bills] … through the State or the territory of the Indian Tribe.” The forgoing will create a federal safe harbor for shipping hemp containing less than .3% THC by volume throughout the 50 states, if adopted in the final rule. It will remain to be seen, however, if the rule will have the force to compel state’s like Idaho into turning a blind eye to the shipment of legal hemp in their territory. In the meantime, anyone attempting to ship hemp, refined CBD or CBD derivative products, should consult with an experienced attorney, like the ones at Ion Law.