Pointing out open questions about what a legal hemp industry means, the USDA issued an executive memorandum that clears up a central point of contention: whether licensed growers may transport their hemp across state lines and access a broader national supply chain.
The short answer is yes, the 2018 Farm Bill provisions allow this.
The USDA’s May 28 memo outlines a path toward federal implementation of the 2018 Farm Bill. The full slate of rules has not yet been developed; rather, the department has been issuing piecemeal guidance in the early days of the legal U.S. hemp industry. Once the USDA outlines a full, formal set of hemp production regulations, states will be barred from stopping any hemp shipments in the U.S.
In the meantime, though: “States and Indian tribes also may not prohibit the interstate transportation or shipment of hemp lawfully produced under the 2014 Farm Bill,” according to the memo, allowing such transport to begin now.
As reported earlier, hemp production will be legal under three auspices: USDA licensure, state or tribal licensure or a 2014 Farm Bill-sanctioned hemp research pilot program (many of which continue to function while the USDA finalizes its impending hemp rules). State and tribal laws may be more stringent than whatever regulations the USDA delivers later this year.
But as Boise State Public Radio points out, the transition into a newly legal hemp era has not been smooth. Idaho State Police report that the law enforcement office will “continue to make arrests and confiscate hemp while enforcing Idaho law.”
The news comes as three men face felony drug trafficking charges for transporting hemp through Idaho (running a shipment from an Oregon grower to a Colorado manufacturer). One of those men has pleaded not guilty; he faces a minimum of five years in prison if he is convicted.
That case is part of what U.S. Sen. Mitch McConnell was referring to when he cited “glitches” in the hemp provisions of the 2018 Farm Bill. The USDA memo is a step toward remedying those attendant legal problems.
In its reading of the Idaho case and similar hemp transport cases, the USDA uses its memo to reiterate the federal Supremacy Clause. This idea of federal preemption means that no state may supersede or contradict a federal law; it’s the foundation of the tension between federal and state law in the cannabis industry, but it’s also what will allow the federal government to throw its weight behind individuals and businesses that are prosecuted on hemp-related charges. The memo specifically calls out a lawsuit prompted by the Idaho criminal case (Big Sky Scientific LLC v. Idaho State Police) and states that “this office does not concur with the reasoning of the magistrate regarding the shipment of hemp lawfully produced under the 2014 Farm Bill [in Oregon].”
The Idaho State Police and the Ada County Prosecutor’s Office issued a joint statement on the case, as reported in Boise State Public Radio: “The 2018 Farm Bill's intent of allowing the interstate transportation of hemp will only be realized once there is a regulatory system in place. As of this date, that system has not been developed in any state - including Idaho - and is therefore not currently in effect.”
And, thus, as the USDA attempts to correct some of the “glitches” that McConnell had been fretting over in April, a new question emerges: Which law will state agencies cite? The 2014 Farm Bill and its hemp research pilot programs or the 2018 Farm Bill and its federal legalization provisions?
Until the USDA issues its 2018 Farm Bill hemp legalization regulations later this year, that question remains an open platform for debate.