In late January, Idaho State Police inspected a truck driven by Denis Palamarchuk on I-84 outside Boise. He’d been stopped at a state port of entry, and law enforcement discovered 6,700 lbs. of cannabis plant material in his rig. Palamarchuk claimed he was transporting hemp from one licensed company to another; police officers asserted that he was carrying illegal marijuana through the state.
Either way, Idaho prohibits any biomass that contains even trace amounts of THC. Palamarchuk was arrested and charged with felony drug trafficking.
The tension in Palamarchuck’s case is a question with which law enforcement authorities and agricultural regulators have been wrestling in early 2019: Now that hemp production is legal in the U.S., what does that really mean for interstate commerce?
Palamarchuk was hired to deliver hemp product from a licensed Oregon farm to Aurora, Colo., where he would deliver the plants to Big Sky Scientific. The truck driver and the Colorado CBD product manufacturer insist that the hemp was legal to transport across state lines, thanks to the passage of the 2018 Farm Bill and its hemp legalization provision. Idaho State Police don’t see it that way.
It’s not clear how the law will ultimately be interpreted in this case and others, as the Farm Bill’s administrative follow-through hasn’t materialized just yet. Hemp is legal, but hemp-derived CBD products are stuck in an FDA-oversight gray area, for example. And hemp production is legal, but truck delivers like Palamarchuk are still facing jail time for handling the plant. (In Oklahoma, also in January, four men were stopped and arrested for transporting more than 17,000 lbs. of hemp plant material from Kentucky to a Colorado manufacturer.)
U.S. Sen. Mitch McConnell says there’s still work to do on the bill he helped pass late last year. What’s needed, he hinted at this week, is federal legislative guidance on interstate hemp transportation.
This is what the senator from Kentucky was referring to when he told farmers and business owners gathered at the Kentucky Exposition Center this week that “We’re in the red zone, but there are some glitches. Some of it may require legislation. If it does, I’ll be there to do it.” The Louisville Courier Journal first reported on McConnell’s remarks.
One of the more nuanced aspects of hemp legalization has been that law enforcement angle: When addressing the matter of probable cause, it’s often difficult to accurately assess whether a plant is Farm Bill-compliant hemp or THC-containing marijuana. The legal distinction is murky enough; the physical distinction, which must occur quickly in the event of a traffic stop, is even more complicated.
Hemp, legally speaking, according to the 2018 Farm Bill and other sources, does not contain more than 0.3-percent THC. Anything above that threshold legally constitutes marijuana and falls under a state’s marijuana statutes—and under the federal Controlled Substances Act. How law enforcement agencies integrate that legal definition is another task that’s been forced into police departments across the U.S. following the Farm Bill passage. In fact, as the Courier Journal points out, hemp is caught in all sorts of snares that have otherwise bogged down the federally illegal marijuana businesses, like a lack of access to banking and difficulty in obtaining crop insurance.
U.S. states, including Florida, Ohio, Texas and Kentucky, have been working out their own laws on hemp production—regulations that will allow farmers to tap into the industry. The U.S. Department of Agriculture, however, must approve those laws first; furthermore, the USDA has not yet written an overarching set of rules to govern a domestic hemp industry and tie those state laws together. A truck driver passing across state lines does not yet have a clear picture of what laws are in place.
How the USDA—or Congress—addresses the interstate commerce question remains to be seen.
Palamarchuk, meanwhile, is stuck in the middle of this debate. He’s set to be arraigned in Idaho’s Fourth District Court on April 16. The Idaho State Police filed paperwork to seize his truck and sell it.
Idaho state lawmakers are in the process of working out an interstate hemp transportation bill, which would allow the Idaho Department of Agriculture to issue permits for such shipments and allow law enforcement to inspect them. That won’t happen in time to impact Palamarchuk’s criminal case.
At the same time, Big Sky Scientific has filed a civil lawsuit against Idaho State Police over the seizure of the hemp shipment that it had been awaiting.
“The 2018 Farm Bill prohibits states from blocking the transportation of industrial hemp in interstate commerce as Defendants have done,” according to the lawsuit. “Notwithstanding the 2018 Farm Bill, states cannot prohibit the shipment of a legal good through interstate commerce under the Commerce Clause.”
For an industry intimately familiar with uncertainty, the beacon of good news that business owners received in late 2018—the legalization of the hemp in the U.S.—has, for the moment, only made things more complicated.
U.S. Department of Agriculture Undersecretary Greg Ibach was in attendance at the Kentucky hemp forum earlier this week, and he echoed McConnell’s call for some sort of fix. “That might be an area where USDA can work together with other federal agencies to not only help them understand hemp, [but] look for testing protocols that might be able to be used on the road to be able to differentiate between hemp and other products that aren’t legal,” he told the Associated Press.