Big Sky Scientific v. Idaho State Police: Considerations for Legally Produced Hemp in Transport

Catie Wightman

 

INTRODUCTION

Both hemp and marijuana are the plant Cannabis sativa L.  Until 2014, it was unlawful to cultivate any variety of Cannabis sativa L. in the United States. The 2014 Farm Bill authorized states to set up research programs to cultivate and market industrial hemp. Industrial hemp was defined in the 2014 Farm Bill as Cannabis sativa L “and any part of such plant, whether growing or not, with a delta-9 THC concentration of not more than 0.3% on a dry weight basis.”[1]  The 2014 Farm Bill preempted industrial hemp grown in accordance with a state pilot program from Controlled Substance Act (CSA) control. Therefore, any Cannabis sativa L. that had a greater than 0.3% THC on a dry weight basis was considered marijuana, and a Schedule I controlled substance. Contrarily, Cannabis sativa L. with 0.3% or less THC on a dry weight basis that was grown in accordance with a state pilot program was considered legal industrial hemp. Many states set up pilot programs under the 2014 Farm Bill, including Oregon and Colorado.

On December 20, 2018, the 2018 Farm Bill was signed into law. The 2018 Farm Bill defines “hemp” as any part of the Cannabis sativa L plant, “including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not” with a THC concentration of less than 0.3% THC on a dry weight basis[2] and amends the CSA to exclude “hemp” from the CSA definition of “marihuana.”[3] Under the 2018 Farm Bill, all Cannabis sativa L. with a THC concentration of 0.3% or less is federally legal, regardless of where it was grown.[4]  While the 2018 Farm Bill legalizes hemp federally, states are still free to define it as a controlled substance under state controlled substances acts.

Subtitle G of the 2018 Farm Bill also allows for federally-sanctioned hemp production under the authority of the USDA, in coordination with state departments of agriculture.[5]  Although the USDA will be the sole federal regulatory authority overseeing hemp production, if states, U.S. territories, or tribes want to have regulatory control, they can submit plans to the USDA for approval.[6]  Under the 2018 Farm Bill, states are still free to prohibit hemp cultivation within their borders.  Recently, the USDA has said that it will have federal hemp regulatory plans ready for the 2020 growing season, and it will not approve any state plans until after the federal plans have been finalized.[7] The hemp provisions in the 2014 Farm Bill that allow states to develop hemp pilot programs will remain in effect until the USDA has promulgated final rules under the 2018 Farm Bill.

While the 2018 Farm Bill still allows states to consider hemp a controlled substance, it sets out protections for hemp in transport. The 2018 Farm Bill explicitly states, “[n]othing in this title or an amendment made by this title prohibits the interstate commerce of hemp . . . or hemp products,” and “[n]o State or Indian Tribe shall prohibit the transportation or shipment of hemp or hemp products produced in accordance with subtitle G . . . .”[8] 

Big Sky Scientific

Currently, Idaho law does not differentiate between hemp and marijuana.  Idaho law defines marijuana as all parts of the Cannabis plant and states that evidence that plant material contains THC creates a presumption that the plant material is marijuana.[9] Therefore, all Cannabis sativa L. that tests positive for THC is considered a Schedule I controlled substance under Idaho’s Controlled Substances Act. 

On January 24th, 2019, Idaho police stopped a semi-truck that was traveling through the state.[10] The truck was carrying approximately 6,700 pounds of hemp that was lawfully grown in Oregon under Oregon’s hemp pilot program.[11] The hemp on the truck had been purchased by Big Sky Scientific and was in route to its facility in Aurora, Colorado.[12] The driver was carrying paperwork that showed that the product was hemp and not marijuana, and that it tested at or below 0.3% THC.[13] Idaho police suspected that the truck was carrying marijuana and performed a roadside test that determined the plant matter was positive for THC.[14] The Idaho police seized the truck and charged the driver with felony drug trafficking.[15]  Big Sky Scientific filed a federal lawsuit against the Idaho State Police seeking a preliminary injunction to force the hemp to be released.[16] The company argues that the hemp was federally legal and protected in transport by the 2018 Farm Bill, regardless of whether it was considered a controlled substance under Idaho state law.[17]  The court denied the company’s requests for a preliminary injunction, reasoning that the hemp was not protected in transport because it was not grown in accordance with Subtitle G of the 2018 Farm Bill.[18] Big Sky Scientific has filed an appeal in the Ninth Circuit that has yet to be decided.[19]

I.  Applicability of subtitle g to the hemp transport protection within the 2018 farm bill

Subtitle G of the 2018 Farm Bill specifies the requirements for state hemp regulatory plans and describes the process for having those plans certified by the USDA.[20]  Subtitle G also describes the process the USDA will use to promulgate rules for a federal hemp regulatory plan.[21]  In states that do not have an approved hemp regulatory plan, hemp production licenses can be issued by the USDA.[22]  However, state governments are free to prohibit hemp cultivation and sale of hemp and hemp products within their borders.[23]

A.    The Scope of Transportation Protection

The provision of the 2018 Farm Bill that protects the transportation of hemp through interstate commerce only applies to hemp “produced in accordance with Subtitle G.”[24]  The provision states specifically 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 (as added by section 10113) through the State or the territory of the Indian Tribe, as applicable.”[25]  As discussed above, Subtitle G specifies the requirements and processes for approval of state regulatory plans, and the process for the USDA to create a federal regulatory plan.[26]  Subtitle G also defines hemp, but the provision that protects transport specifically states that only hemp produced in accordance with Subtitle G is protected in transport.[27]  Additionally, the provision preceding the explicit transportation protection states that nothing in the act will prohibit the interstate commerce of hemp as defined in section 297A.[28]  Therefore, had Congress intended to protect the transport of all hemp as defined in the 2018 Farm Bill, it was aware of the specific language to use, as it used that language in the previous provision by specifying that the protection applied to all hemp as defined in section 297A.  For these reasons, it is likely that the provision in the 2018 Farm Bill that explicitly protects hemp in transport only protects hemp that was produced in accordance with Subtitle G, not any hemp that falls within the definition of hemp in the 2018 Farm Bill.

 It is likely that only hemp produced under a state plan that has been approved by the USDA, or hemp produced with a license from the USDA is produced in accordance with Subtitle G.  The 2018 Farm Bill states that all state plans submitted to the USDA must either be approved or disapproved within sixty days of submission.[29]  However, recently the USDA has stated that it will not approve any state plans until federal regulations have been promulgated, and it does not expect federal regulations to be finalized until late 2019. As of May 22, 2019, no state plans have been approved, so there has been no hemp produced under an approved state plan pursuant to the 2018 Farm Bill.  Because there have not yet been any approved state plans, and the USDA has not yet promulgated any regulations establishing a federal plan, no hemp has been produced in accordance with Subtitle G.  Therefore, the provision of the 2018 Farm Bill that protects the transport of hemp produced in accordance with Subtitle G is likely not yet in effect and does not protect any hemp currently produced under any state pilot programs that were authorized under the 2014 Farm Bill. 

B.    Hemp Transportation and the Commerce Clause

It is unlikely that a state law that interferes with the transport of hemp not produced in accordance with Subtitle G is invalid under the Commerce Clause.  The Commerce Clause of the United States Constitution gives Congress the power to regulate interstate commerce.[30]  The Commerce Clause grants authority to Congress, but does not expressly limit the power of the states.[31]  However, the U.S. Supreme Court has long held that the Commerce Clause impliedly limits the power of the states to interfere with interstate commerce.[32]  Even with the implied limit on state power to interfere with interstate commerce, Congress may “confe[r] upon the States an ability to restrict the flow of interstate commerce that they would not otherwise enjoy.”[33]  If Congress gives the states the power to regulate an aspect of interstate commerce, the action taken by the states within the power conferred on them by Congress cannot be challenged on Commerce Clause grounds.[34]  As discussed above, the provision in the 2018 Farm Bill that protects hemp in transport only applies to hemp that is produced in accordance with Subtitle G.[35]  The 2018 Farm Bill also gives states the power to continue to restrict  hemp production and the sale of hemp and hemp products.[36]  Because Congress leaves states free to restrict hemp, unless a state goes beyond the authorization and prohibits hemp produced in accordance with Subtitle G from traveling through the state, it is unlikely that a Commerce Clause challenge will effectively invalidate the state law.  It could be argued that the transportation protection provision in the 2018 Farm Bill shows clear congressional intent that hemp transportation in interstate commerce shall not be prohibited.[37]  However, the provision of the 2018 Farm Bill that explicitly states hemp transportation shall not be prohibited only protects hemp produced in accordance with Subtitle G.  Had Congress intended that all hemp as defined in the 2018 Farm Bill be protected in transport, it could have explicitly stated so by protecting hemp as defined in section 297A of the Agricultural Marketing Act of 1946, like it did in the other provision related to transport.

It should be noted however, that an administrative law judge has recently ruled that because hemp is not a controlled substance under federal law, it can be sent through the mail.[38]  This provides for an interesting situation where a postal worker could technically be criminally charged for possession of a controlled substance while transporting hemp through a state where it is illegal.  Additionally, when regulations are in place and hemp is grown in accordance with Subtitle G, states will be unable to prohibit transport through the state but will still be free to classify hemp as a controlled substance.  This may cause states to revisit the classification of hemp, as it will be hard to enforce a law where transport through the state is legal but possession within the state is not. 

In sum, until the USDA establishes regulations, and hemp cultivated in the United States is grown in accordance with Subtitle G of the 2018 Farm Bill, there are real risks to the interstate transport of hemp and hemp products.  Producers and distributors should be aware of these risks when contemplating shipping hemp through states where it is considered a controlled substance.

[1]     The Agricultural Act of 2014, H.R. 2642, 113th Cong. §7606 (2014).

[2]     H.R. 2, 115th Cong. § 10113 (2018) (inserting § 297A(1)).

[3]     Id. at § 12619.

[4]     Id. at § 10113 (inserting § 297A(1)).

[5]     Id. at § 10113 (inserting § 297B(e)(3)(B)).

[6]     Id. (amending 7 U.S.C. 1621 by inserting § 297B(a)(1)).

[7]     Hemp Production Program, U.S. Dep’t of Agric (Feb. 27, 2019), https://www.ams.usda.gov/content/hemp-production-program.

[8]     H.R. 2, 115th Cong. § 10114 (2018).

[9]     Idaho Code § 37-2701(t) (2018) (“’Marijuana’ means all parts of the plant of the genus Cannabis, regardless of species, and whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin. It does not include the mature stalks of the plant unless the same are intermixed with prohibited parts thereof, fiber produced from the stalks, oil or cake made from the seeds or the achene of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, except the resin extracted therefrom or where the same are intermixed with prohibited parts of such plant, fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination. Evidence that any plant material or the resin or any derivative thereof, regardless of form, contains any of the chemical substances classified as tetrahydrocannabinols shall create a presumption that such material is “marijuana” as defined and prohibited herein.”).

[10]   Paul P. Murphy, Police seize almost 7,000 pounds of cannabis from a truck. But the company that bought it says it's all legal, CNN (Feb. 7, 2019), https://www.cnn.com/2019/02/06/us/hemp-marijuana-idaho-trnd/index.html.

[11]   Murphy, supra note 10.

[12]   Murphy, supra note 10.

[13]   Murphy, supra note 10.

[14]   Murphy, supra note 10.

[15]   Murphy, supra note 10.

[16]   Murphy, supra note 10.

[17]   Murphy, supra note 10.

[18]   Federal appeals court to review Idaho hemp seizure, Hemp Industry Daily (Feb. 26, 2019), https://hempindustrydaily.com/federal-appeals-court-review-idaho-hemp-seizure/

[19]   Id.

[20]   H.R. 2, 115th Cong. § 10113 (2018).

[21]   Id.

[22]   Id.

[23]   Id.

[24]   Id. at § 10114 (emphasis added).

[25]   Id.

[26]   Id. at § 10113.

[27]   Id. at § 10114.

[28]   Id.  

[29]   Id. at § 10113.

[30]   U.S. Const. art. I, § 8, cl. 3.

[31]   Western and Southern Life Ins. Co. v. State Bd. of Equalization of California, 451 U.S. 648, 652 (1981).

[32]   Id.

[33]   Lewis v. BT Inv. Managers, 447 U.S. 27 (1980).

[34]   Western and Southern Life Ins., 451 U.S. at 652 (1981).

[35]   H.R. 2, 115th Cong. § 10114 (2018).

[36]   Id. at § 10113 (2018) (“Nothing in this subsection preempts or limits any law of a State or Indian tribe that— ‘‘(i) regulates the production of hemp; and ‘‘(ii) is more stringent than this subtitle.”).

[37]   Id. at § 10114.

[38]   KAB, LLC v. U. S. Postal Service, P.S. Docket No. MLB 18-39 (Nov. 8, 2018) https://about.usps.com/who-we-are/judicial/admin-decisions/2018/mlb-18-39-fd.htm.