Smokable Hemp Leaves Lack of Clarity in the Hawkeye State

By William Sumner, Hemp Content Manager, New Frontier Data

Most headlines about the federal passage of the 2018 Farm Bill touted nationwide U.S. legalization of hemp for the first time since World War II. Apart from a short exemption for resources during the war effort, hemp was not legally differentiated from other cannabis plants, all of which were effectively made federally illegal under the 1937 Marihuana Tax Act, then formally prohibited under the 1970 Controlled Substances Act.

Yet, while U.S. hemp policy has been drastically transformed over the past 19 months, misconceptions and legal inconsistencies remain about what, exactly, different jurisdictions and laws allow. Iowa, for instance, may be the nation’s second agricultural-producing state in terms of cash receipts, but it is considered illegal to possess hemp flower in the Hawkeye State.

Last month, Iowa Gov. Kim Reynolds signed Hemp Consumer and Public Safety Act into law as an amendment of the Iowa Hemp Act. In addition to boilerplate provisions such as codifying sampling and harvesting guidelines, the measure also imposes criminal penalties for having smokable hemp.

Under the new law, either possessing, using, manufacturing, marketing, transporting, or distributing hemp meant for inhalation is considered a  “serious misdemeanor” punishable by up to a year in jail and a fine ranging from $315-$1,875.

Currently, Iowa is among 12 U.S. states banning the sale of smokable hemp flower, though no other state levels criminal penalties for simple possession (in Louisiana, selling prohibited hemp can net a $300 fine for a first offense, though neither retailers nor consumers are subject to jail time).

A common reason for banning smokable hemp is the plant’s close resemblance to cannabis. Lacking a test from a certified lab, it is practically impossible for law enforcement to distinguish between hemp and cannabis flower, leading to confusion, added complexity, and time spent if seized in transport.

Thus — though the U.S. Department of Agriculture (USDA) has proposed a system for hemp operators to confirm their legitimacy — most states have opted instead for an outright ban of hemp flower.

Subsequently, producers decry the contradiction between the proverbial carrots of the 2018 Farm Bill and the USDA’s interim hemp regulations, versus the state’s ban, respectively.

According to the USDA’s interim final rule, “Nothing preempts or limits any law of a State or Tribe that regulates the production of hemp and is more stringent than the provisions in the 2018 Farm Bill.”

Under that interpretation, states are within their rights to ban the sale of smokable hemp flower. However, the question remains whether states may also impose criminal penalties, with the hinge resting in the phrase “the production of hemp.”

If simple possession of hemp flower is not related to hemp production, does that prevent Iowa from prosecuting individuals? Or is the state’s more expansive interpretation of the USDA’s rules valid? Pending a court challenge, the question looms.

Iowa’s Hemp Consumer and Public Safety Act is set to take effect on August 1.