As of January 1st, 2019, the issue of transporting industrial hemp across state lines was supposed to have been resolved. The Agriculture Improvement Act of 2018, also known as the 2018 Farm Bill, removed hemp from the Controlled Substances Act and provided protections for the interstate commerce of hemp. Unfortunately, as we have seen over the past two months, some states are late to the party, resulting in a few high-profile seizures of hemp and arrests. The following two cases illustrate just how uncertain the landscape currently is for interstate shipments of hemp, and why it is critically important to consult with an attorney before sending your crops out-of-state:
Idaho v. Big Sky Scientific
On January 24, 2019, Idaho State Police arrested Denis Palamarchuck, a trucker employed by VIP Transport in Portland, Oregon, for carrying what the state of Idaho says is 6,701 pounds of illicit marijuana. Big Sky Scientific LLC, the Colorado company that was having the product shipped, said it bought about 13,000 pounds of industrial hemp from Boones Ferry Berry Farms in Hubbard, Oregon. When confronted by law enforcement, the driver informed the officers he was carrying hemp and offered the third party testing certificates confirming it, but an Idaho state policeman checking the load at a weigh station decided to test the product anyway.
The arrest occurred after the analysis revealed the product contained trace amounts of THC, the psychoactive chemical present in hemp and marijuana. But herein lies a crucial distinction. Marijuana and hemp are both members of the cannabis family. But hemp is defined by the Federal government as having less than .03 percent THC, which is why it doesn’t get you high. It’s also why the federal government legalized it. Marijuana, by contrast, has a greater concentration of THC, generally between 10-20 percent. Preliminary testing of the shipment revealed the presence of THC, but not how much or whether the product is hemp or marijuana. According to law enforcement officials in Idaho, cannabis containing ANY detectable amount of THC is illegal within its state borders, despite the recent removal of hemp from the Controlled Substances Act. Big Sky Scientific is currently suing the State of Idaho to have its shipment of hemp returned.
Oklahoma v. Panacea Life Sciences
On January 9, 2019, law enforcement in Pawhuska, Oklahoma conducted a traffic stop on a tractor-trailer for allegedly running a red light. During the course of the stop, officers searched the trailer and discovered that the truck contained more than 17,000 pounds of hemp in route from Kentucky to a business in Colorado. The truck drivers and the drivers of a follow van, which was providing security for the shipment, were jailed and charged with drug trafficking.
Officials in Oklahoma claimed it was unclear that it wasn’t marijuana, even though James Baumgartner, president of the company purchasing the shipment, produced paperwork certifying that the shipment had been tested to contain less than 0.3 percent THC. Despite the protections for interstate shipments of hemp included in the 2018 Farm Bill, state officials maintain their position that the shipment “may contain illegal marijuana” and thus be exempt from the protections of Federal law. Defense attorneys for the accused have stated that the results of testing on 11 separate samples taken from the shipment in question have all come back with THC percentages at or just barely above 0.3 percent THC. All of the results were below 1 percent THC, however, which is the bar set federally for the difference between a negligent and intentional violation of marijuana laws. “Negligent” or accidental transport of industrial hemp containing over 0.03 percent THC carries no penalty federally, though Oklahoma retains the right via state law to possibly fine the business transporting the product. This case is currently scheduled for a status hearing on March 11th, at which the parties hope to reach a resolution.
These cases demonstrate the ongoing risk in the hemp industry, despite the recent passage of the Farm Bill. Technically, the 2018 Farm Bill allows states with federally compliant plans to legally produce, process and transport industrial hemp. The problem at the moment is that the USDA has yet to approve any of the plans which have been submitted by the states. Until that happens, we here at Vermont Cannabis Solutions would strongly recommend that you consult with an attorney prior to shipping your hemp crop out-of-state. Specifically, be careful of routes which take your shipments through Idaho, Nebraska, or South Dakota as these states do not have an approved pilot program for hemp, nor do they intend to submit a proposal to the USDA under the 2018 Farm Bill.
The biggest lesson to learn from both of these cases is that hemp companies should potency test all product batches before sending them across state lines and risking their employees’ imprisonment. If that hemp is testing even as “barely marijuana,” then it is a liability to move it across state lines. Furthermore, it is important to know what each state’s definition of hemp is, as evidenced by Idaho, some of them have a very strict definition of hemp.