Hemp growers already facing a learning curve when it comes to producing the crop this year are confronting a scarier prospect than low yields or a lack of processing facilities: the potential for seizure of their crop on the road.
It’s happened several times already, according to news reports and discussions with those in the business — perhaps most notably in Idaho Jan. 24, when state troopers in Ada County pulled over a truck carrying more than three tons of hemp.
They arrested the driver and seized the hemp. The company shipping the product, Big Sky Scientific of Aurora, Colo., sued to get the product back, but the police are still holding it. The driver, who had been facing a sentence of five years to life for trafficking marijuana, pled down to a misdemeanor for not signing a bill of lading - documentation issued by the carrier to acknowledge the cargo - and will pay a reduced fine of $1,000.
It’s an unintended but perhaps unavoidable consequence of the 2018 farm bill, which ended decades of criminalization of industrial hemp, the low-THC cousin of marijuana, whose high THC levels lend it psychoactive properties. To qualify as industrial hemp, the level of tetrahydrocannabinol cannot exceed 0.3%.
Despite the rising tide of marijuana legalization, many states still criminalize cannabis possession and four states have not legalized hemp production, creating confusion for hemp growers and companies seeking to commercialize the plant, which has myriad uses from medicine to food to fiber. Idaho is one of the states without legal hemp.
“We’re stuck in the middle,” says Collin Mooney, executive director of the Commercial Vehicle Safety Alliance, which advocates for safety standards in the trucking industry. CVSA is in the early stages of starting a task force among interested parties to determine how to deal with hemp shipments.
A major problem for law enforcement is “there really is no good roadside test" for THC levels, says Abigail Potter, manager of safety and occupational health policy for the American Trucking Associations.
“Law enforcement is definitely behind in trying to deal with this,” Potter says. “The average law enforcement officer can’t tell the difference” between hemp and cannabis grown for medical or recreational purposes. ATA advises drivers to “act with extreme caution” and gather all necessary documentation to show that the hemp they are transporting is, indeed, hemp.
Jerry Sharp, a state trooper in Colorado who speaks to other troopers and groups who need education on the issue, says there are similarities between marijuana and hemp, but experience pays off.
In an interview with Agri-Pulse, Sharp said he recently stopped a truck carrying hemp plants that were heading for an outdoor grow. “I very well could have ended up seizing all those plants,” he said, but he knew which farm it was from because he had visited it. After some verification, he sent the truck on its way.
“Technology has to evolve” to where testing equipment is small and mobile enough that law enforcement can quantify THC levels by the side of the road, Sharp says.
Senate Majority Leader Mitch McConnell, the prime mover behind the hemp language in the farm bill, has the same idea. He inserted language in an FY 2020 spending bill directing the Drug Enforcement Administration to work on identifying or developing “on-the-spot field testing technologies and devices to distinguish between hemp and marijuana.”
DEA would have to report back to the appropriations committee every six months until such technology is developed. The House version of the spending bill does not contain similar language.
Another critical step will be the Agriculture Department’s release of an interim final rule implementing the farm bill’s hemp program. Hemp industry proponents are optimistic USDA will address the transportation question, which USDA General Counsel Stephen Vaden already spoke to earlier this year.
In an opinion issued in May, Vaden said the farm bill legalized interstate transportation of hemp.
While helpful, Potter said the opinion does not carry the force of law. In the Idaho case, Ada County and the Idaho State Police have argued that only hemp produced in compliance with the yet-to-be issued USDA regulations is legal. Last month, the 9th Circuit Court of Appeals declined to rule on the substance of the farm bill language and sent the case to state court, as requested by Ada County and the ISP.
Big Sky Scientific attorney Elijah Watkins of Stoel Rives in Boise agrees with the need for more technology: “When someone’s pulled over for a DUI, people have the technology to measure the amount of alcohol,” he says. His client is arguing in state court in Idaho that the farm bill is explicit in allowing interstate shipments of hemp.
A USDA spokesperson did not answer directly when asked whether the interim final rule, expected to be issued this fall, would cover transportation, but pointed to the Vaden opinion.
“The forthcoming rule on the cultivation of hemp will address requirements as set forth by the 2018 Farm Bill, which include, but are not limited to, maintaining relevant information regarding land on which hemp is produced, procedures for testing THC levels of hemp, procedures for the effective disposal of plants that are produced in violation of the 2018 Farm Bill, and procedures for conducting annual inspections of hemp producers,” the spokesperson said.
“I’m very hopeful that it’ll get resolved” with issuance of the IFR, said Eric Steenstra, president of Vote Hemp.
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