Despite the passage of the 2018 Farm Bill decriminalizing transportation of hemp and hemp-derived products, local authorities have continued to seize loads and enforce state prohibitions on these products.
The 2018 Farm Bill differentiated industrial hemp from marijuana. Industrial hemp has a concentration of tetrahydrocannabinol, also known as THC, the compound responsible for psychoactive effects, equal to or less than 0.3 percent. Industrial hemp is used in products like paper, textiles and fuel. According to the American Trade Association of Cannabis and Hemp, the total acres of hemp grown in the United States jumped 250 percent from 2016 to 2017. As a result of the 2018 Farm Bill, industrial hemp was no longer considered a controlled substance under federal law. States still may classify industrial hemp as a controlled substance.
Transportation companies have reported seizures of industrial hemp and hemp-derived products traveling through Idaho, Wyoming and Kentucky. One company filed a federal lawsuit seeking to force prosecutors to return the seized load. The company's driver faces a criminal charge of felony trafficking. The civil case remains pending before the 9th Circuit U.S. Court of Appeals.
The 2018 Farm Bill will, eventually, preempt states from prohibiting the interstate transportation of industrial hemp and related products. However, the preemption will not go into effect until the U.S. Department of Agriculture approves state regulatory plans regarding hemp production. To date, the U.S. Department of Agriculture has not done so.
Comment: Carriers looking to break into the growing hemp-industry should exercise caution in transporting such products. They should be attentive to the laws of the states through which the load will travel to determine whether the load is subject to seizure by state authorities.
For more information, please contact Katherine Tenzinger at ktenzinger@wglaw.com or 267.765.4138, or James A. Wescoe at jwescoe@wglaw.com or 267.765.4123.