Why hate on hemp?
Yes, it's federally legal, but apparently not in every state
Here’s a paradox: Congress legalized industrial hemp in the 2018 Farm Bill. It’s now managed by the Department of Agriculture as a crop rather than by the Justice Department as an illegal substance. But two states—South Dakota and Idaho—have passed laws against hemp production, and they’re proceeding to dig their heels into these laws as if they’re competing against one another for the “wrong side of history” trophy.
South Dakota’s governor Kristi Noem vetoed a bill to legalize industrial hemp in March.
In Idaho, it’s also illegal to grow hemp, and it’s almost legal to drive through the state with hemp in your possession. A bill is set to be approved this week to allow out-of-state truckers to transport hemp through Idaho; they must first receive a permit from the state Department of Agriculture to do so, and they’re subject to inspections by law enforcement at checkpoints.
Most states are in the process of passing some sort of universal, state-wide hemp laws, but in California, hemp legalization is also complicated. The state hasn’t passed guidelines yet, but Sonoma County officials have already voted to ban hemp cultivation until 2020. Humboldt County also placed a 45 day ban on hemp, hoping that state legislatures will put guidelines together within that timeframe.
Why is this happening?
According to federal law, any state that wants to produce hemp must submit a licensing and regulation plan to the USDA for approval, and most states are in the process of writing this up now. If a state doesn’t want to come up with its own plan for hemp, it can implement the federal program outlined in the 2018 Farm Bill. States can also decide to ban hemp entirely, even though it’s now defined as an agricultural commodity, and that commodity is subject to regulation by various agencies. For instance, edible products are now held accountable to FDA standards, and hemp producers need to go through a state application process to be approved and to receive a license to grow it. Each state gets to decide who gets to grow it, how much they can grow, and the fees and guidelines associated with growing it.
So while hemp is federally legal, this doesn’t mean we can pick up a pack of seeds over the weekend and plant them in our backyards next to our tomatoes. Quite frankly, that’s a little strange, given the fact that marijuana is still federally illegal, but people are able to grow it at home under state law.
In thirty of the states that have legalized marijuana, residents are allowed to grow it in their homes. Typically, this is reserved for medical marijuana patients, but there are some states—including California—that allow recreational users to grow their own weed at home. If you’re over 21 years of age in California, you can grow up to six pot plants. Yes, you can now grow your own recreational drugs, but you can’t grow a federally legal agricultural crop.
Now that we know all about hemp’s benefits, and Congress essentially gave the country a blank slate to do with it as we please, I can’t wrap my head around why there’s still a push against it.
Why are we still discriminating against hemp?
Sure, marijuana growers do have a legitimate concern and a reason to see hemp as a threat. Hemp’s pollen greatly reduces the THC content of the marijuana plant. According to a 2003 Canadian research paper titled “A Preliminary Study of Pollen Dispersal in Cannabis Sativa,” a single hemp flower generates approximately 350,000 individual pollen grains, and hemp pollen can be spread by the wind for up to 30 miles. Since hemp is usually grown outside in a field, birds and bees and other animals could potentially carry that pollen as well.
While most marijuana is grown inside under precise conditions, California’s Mendocino and Humboldt Counties allow outdoor grows, so these local pot businesses might be some of of the bigger voices opposing hemp cultivation in the area. After all, they were there first, and now they’re take more risks than hemp farmers.
The Farm Bill granted hemp producers access to banking services, just like any other legal business, and for farmers, this includes federal crop insurance. However, the marijuana industry still doesn’t have access to these benefits because marijuana is a federally illegal substance. Federal banks won’t give loans, credit cards, or even a bank account to marijuana businesses. So while hemp farmers could file an insurance claim after an untimely frost swept in and killed most of their crop, marijuana growers don’t have any recourse. If hemp pollen found its way to a marijuana grow and drastically reduced the high THC content, there’s no way to reverse that. The entire grow would be compromised.
Yet, this specific example doesn’t apply to Idaho or South Dakota.
There are no legal marijuana growers in either state. According to Idaho’s State Agriculture website, the state is ranked among the top 10 in the country for producing more than 25 crops and livestock:
Idaho agriculture is flourishing. In fact, it is the single largest contributor to Idaho’s economy, accounting for 20% of Idaho’s gross state product each year. Our agricultural production regularly sets and breaks records for cash receipts. Food and beverage processing is the state’s second largest manufacturing sector.
Currently, no hemp can be grown in Idaho until 2020. It’s literally the only Western state that doesn’t allow any cultivation of hemp for commercial, research or pilot program use. Since Idaho’s state laws list hemp as an illegal substance, the state doesn’t recognize hemp as an agricultural crop.
So why wouldn’t you want your farmers to capitalize on hemp, which is being defined as America’s newest cash crop?
Idaho’s grand plan: Ignore the farmers—the state’s admitted economic backbone—and rely on arresting everyone humanly possible in the hemp industry to drum up more money for the state.
According to federal law, it’s legal to transport hemp across state lines. For example, hemp can be grown in Oregon and then it can be sold for processing in Wyoming, and if that truck transports that hemp across Idaho lines, it is 100% federally legal. Unless the State of Idaho passes laws that do not allow hemp within its borders. . . which it did. Idaho law doesn’t differentiate between hemp and marijuana—any plant containing any amount of THC is considered marijuana. Since hemp contains about .3% THC, anyone transporting hemp through Idaho can be charged with drug trafficking. It doesn’t matter if what they’re doing is federally legal.
In January 2019, Boise police seized 6,701 pounds of hemp from a truck with Oregon plates. While the truck driver had paperwork that indicated the product was indeed hemp, he was still arrested and had to post a $100,000 bail. He’s now facing trial, and if convicted, he can serve at least five years in prison and pay a minimum $15,000 fine.
Colorado-based Big Sky Scientific, the company that purchased the hemp from a licensed hemp farm in Oregon, is now suing to get its CBD-rich hemp back from the state of Idaho.
According to the lawsuit, the Oregon farm tested “19 different samples” and found that their THC level was .043% — which is much lower than the federally legal limit of .3%. But because hemp smells like pot, and because the drug testing kit issued to Idaho police is used to register any THC content, the driver was arrested and the hemp was seized.
Unfortunately, this is not the first time that this has happened. In 2018, two out-of-state men driving a truck through Idaho were charged with trafficking nearly 1,000 “marijuana” plants. Though they insisted the plants were actually hemp, it didn’t matter; hemp contains trace amounts of THC and THC is illegal in Idaho. They’re currently awaiting their June 25th sentencing, which could also include up to five years in prison or a $15,000 fine.
“I’ve spoken to the farmer who actually grew these plants,” stated the defense attorney. “He’s got a farm in Colorado and he has one in Oregon, and that’s where they were going. They were transporting hemp plants, immature hemp plants, for plantation in Oregon.”
Meanwhile, we haven’t heard much of a peep from the DEA.
The Drug Enforcement Agency goes after federally illegal substances; since hemp is no longer illegal, the agency wants to stop these arrests from occurring. In March, the DEA put out a request to private companies to see if there are more specific testing kits available so law enforcement can accurately determine the difference between hemp and marijuana during immediate situations, such as traffic stops.
"Nobody wants to see someone in jail for a month for the wrong thing," DEA spokeswoman Barbara Carreno said. "To enable us to do our job, we have to have something that can help us distinguish."
The unwanted media attention from Big Sky Scientific’s lawsuit has caused Idaho’s money making scheme to backfire. Can’t keep arresting and fining the truckers transporting hemp through Idaho if the company that hires them is going to sue. Guess law enforcement didn’t consider that hemp farmers will fight to get their federally legal products back. . . coincidentally, Idaho legislatures are now about to approve a permit and a procedure for truckers transporting hemp.
Regardless, Oregon is on the defense.
According to the Associated Press, the Oregon Department of Agriculture issued a formal warning to hemp growers, instructing them not to ship their crop across state lines, especially after arrests were made in Oklahoma.
Oklahoma just grew its first industrial hemp harvest in November 2018, but law enforcement still arrested a driver for transporting 18,000 pounds of Kentucky hemp, touting it as the biggest drug bust of all time.
According to the local news, one of the arresting officers said the two drivers and their security detail (who were riding in a van behind the truck filled with hemp) acted professionally.
“They acted very assured of what they were doing was legal," said Officer Wamego.
Clearly, what they were doing was legal.
In late March 2019, it was reported that charges have been dropped for two of the four men arrested in Oklahoma, but the rest of the case is currently on-going. The precious hemp cargo—with a value of nearly $1 million after it’s processed—is still being held by Oklahoma’s Pawhuska police.
In this case, since Oklahoma already started its own industrial hemp program, state law enforcement should absolutely be able to tell the difference between hemp and marijuana, yet the seized hemp was sent to a DEA lab in Washington, DC for testing, and who knows if the hemp business will ever recoup this money? (Crop insurance doesn’t cover seized assets by law enforcement.)
Even more aggravating, Oklahoma sent the hemp to the DEA after Kentucky officials confirmed that it came from a farm that is already licensed for growing and handling hemp.
“What local law enforcement is doing is they’re stifling an industry that Congress intended to promote to help American farmers and help the American economy — not to make people nervous that they’re going to get tossed in jail over a (THC) discrepancy,” said Frank Robison, a Colorado-based attorney who represents one of the companies involved in the Oklahoma case.
This is really a shame, considering more than 40 states have already defined industrial hemp as distinct from marijuana, removed barriers to its production, and are updating state hemp laws so that they reflect federal law.
So how bad is it in South Dakota?
Just today, a 57-year-old Alaskan man was boarding a plane in South Dakota and was arrested for being in possession of CBD oil. He is being charged with a class 5 felony. The CBD oil was described as “hemp oil” by the Sioux Falls Police Department.
Again, under South Dakota law, there is no difference between hemp and marijuana. Law enforcement believes the two plants are exactly the same, and they’ll process people with hemp-derived CBD oil as if they were in possession of marijuana.
Since hemp-derived CBD oil is now federal legal, South Dakota seems to have found the perfect loophole to make more money for the state by pretending hemp and marijuana are the same thing. What’s truly disgusting about this is the perversion of what CBD actually is.
A 57-year-old with CBD oil? That’s certainly being used as a medication. I sure hope he’s able to sue the state for blocking his access to it.
Meanwhile, the South Dakota legislature claims they’ll be researching and learning about hemp, and then they’ll be ready to make a decision about what will be legal in 2020. Until then, they’ll allow law enforcement to ruin people’s lives for no reason other than their willing ignorance.
According to the state’s agricultural department, “agriculture is the life-blood of South Dakota. It is our state’s #1 industry,” but that doesn’t mean the state’s government actually cares about farmers.
"Our state is not yet ready for the production of industrial hemp," Governor Noem said. She claimed that she vetoed the bill to legalize industrial hemp because it "supports a national effort to legalize marijuana for recreational use."
Never mind the fact that Noem’s a Republican and the GOP essentially legalized hemp through the farm bill.
Never mind that South Dakota farmers have have been vocal about their desire to grow hemp.
“Companies were ready to purchase South Dakota's hemp crop. This new crop would have provided new jobs and opportunities for South Dakotans during a time when many commodity markets are down, and family farmers and ranchers are looking for new opportunities,” remarked South Dakota Farmers Union President Doug Sombke. “It's a sad day when South Dakota's Governor's does not understand the differences between hemp as a viable crop and marijuana an illegal plant.”
And it’s sad to see that some of those who are in a position to do the most good are choosing to do the worst harm.