Implications and Ramifications of the Hemp Seizures in Idaho and Oklahoma
By David Bush, Senior Attorney, Hoban Law Group
“A house divided against itself, cannot stand. I believe this government cannot endure, permanently, half slave and half free.” ~ Abraham Lincoln, June 16, 1858
Recent seizures of hemp by state authorities in Oklahoma and Idaho follow a disturbing pattern. Hemp was legally grown and harvested in one state and in transit by truck to another state, when it was stopped on route through a third. State law enforcement authorities seized the shipment, tested it and concluded that it contained “marijuana,” before jailing the drivers and charging them with felonies that could result in prison sentences of between five and 15 years.
Had the seizures occurred before there was a commercial hemp industry in America, the incidents would have attracted little attention. That they happened in 2019, after Congress created a framework for federal regulation of commercial hemp, is deeply troubling.
In a sense, we have come full circle. The very reason that hemp is legal in America at all today is a direct result of the same forces that underlie what occurred in Oklahoma and Idaho. States are sovereign powers under the United States Constitution and the 10th Amendment, which reads in its entirety, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
States that decided to decriminalize hemp and regulate its commercial production, manufacture, and sale, did so not because the federal government let them, but simply because they could. Yet, the saw cuts both ways: States that wish to prohibit hemp still can.
Hemp is an intrinsically interstate and international industry. But with our patchwork of laws, where some states regulate hemp as a commercial activity and others still treat its possession and sale as criminal violations, conflict is inevitable.
With passage of the Agricultural Improvement Act of 2018, Congress announced that states could no longer interfere with shipments of legal hemp in transit across state lines. But Congress also gave states leeway to regulate hemp more stringently than called for under federal law, and even to prohibit hemp cultivation, and possibly even sales, within their own borders.
The devil is in the details, and we do not yet even have the details. The new federal regulatory system for hemp is not expected to be in place until the end of this year. In the meantime, states will continue to regulate (or prohibit) hemp independently, as they have done in the past.
Whether the federal hemp regulatory program will provide clear protections for interstate shipments and commerce in hemp remains to be seen. Will the THC test results administered by the state of origin serve as conclusive evidence in every other state that the material is hemp and not marijuana? When will state law enforcement have authority to stop and detain a shipment on suspicion that it is not legal hemp? Can states charge shippers of hemp with criminal possession when they are merely transporting it across the state? Some questions might be resolved once the new federal hemp regulatory system is created. But others may require still further legislation by Congress – or rulings by the courts. It could require months or years to resolve the current web of confusion and uncertainty.
David B. Bush is a Senior Attorney with Hoban Law Group. He may be reached via davidb@hoban.law
