USDA Memo: Unlawful for states to block interstate commerce of hemp

The United States Department of Agriculture Office of General Counsel issued a detailed legal opinion last week regarding interstate commerce of hemp.

Idaho State Police claim their arrest of a truck driver in January and seizure of 3.5 tons of hemp was lawful. The 2018 Farm Bill, which legalized hemp (defined in the bill as strains of cannabis sativa containing less than 0.3% THC) nationally, also left it up to the states to decide whether they want to legalize the drug under state law. Idaho has thus far chosen to keep hemp illegal. ISP argues that they have the right to drag truck drivers off the road, lock them into cages, and slap them with felony drug charges because, in their opinion, the law doesn’t change until detailed regulatory plans are implemented on a federal level.

The USDA dunked on Idaho State Police in detail:

I address here two principal objections to the view that the decontrolling of hemp is self-executing. The first objection is that, because regulations have not been published under CSA§ 201, the legislative changes to schedule I regarding hemp are not effective. This objection is not valid.

The typical process for amending the CSA schedules is through rulemaking. Under CSA § 201(a), the Attorney General “may by rule” add to, remove from, or transfer between the schedules, any drugs or other substances upon the making of certain findings. 21 U.S.C. § 811(a). However, the schedules also can be amended directly by Congress through changes to the statute; and Congress has done so several times.

The second objection is that, because the legislative changes to schedule I regarding hemp are not yet reflected in 21 C.F.R. § 1308.11, the removal is not yet effective. This objection also is not valid.

It is axiomatic that statutes trump regulations. Congress established the five CSA schedules in statute, providing that “[s]uch schedules shall initially consist of the substances listed in this section.” 21 U.S.C. § 812(a).6

Congress further provided that “[t]he schedules established by this section shall be updated and republished on a semiannual basis during the two-year period beginning one year after October 27, 1970, and shall be updated and republished on an annual basis thereafter.” 21 U.S.C. § 812(a). The requirement to update and republish the schedules,
however, is not a prerequisite to the effectiveness of the schedules “established by [the statute].”

In other words, where Congress itself amends the schedules to add or remove a controlled substance, the addition or removal of that controlled substance is effective immediately on enactment (absent some other effective date in the legislation); its addition to or removal from a schedule is not dependent on rulemaking.

The USDA went on to point to where the Farm Bill explicitly prohibits states and Indian tribes from blocking interstate commerce of hemp.

Subsection (b), however, specifically prohibits States and Indian tribes from prohibiting the transportation of hemp through that State or Tribal territory. Subsection (b) provides:
“(b) TRANSPORTATION OF HEMP AND HEMP PRODUCTS.—No State or Indian Tribe shall prohibit the transportation or shipment of hemp or hemp products produced in accordance with subtitle G of the Agricultural Marketing Act of 1946 (as added by section 10113) through the State or the territory of the Indian Tribe, as applicable.”
…In effect, this provision preempts State law to the extent such State law
prohibits the interstate transportation or shipment of hemp…

If that isn’t enough punishment, two Idaho state representatives, a Democrat and a Republican, delivered a petition with 13,000 signatures asking ISP to drop charges against the driver.

“I think we all agree that Idaho is on the brink of committing a serious injustice, and we want to do everything in our power to avoid that from happening. The only person right now who has the power to fix it is Prosecutor Jan Bennetts,” said [Boise Representative Ilana] Rubel.

The prosecutor for Ada County, where the driver was arrested, and the Idaho State Police responded to the petition. This response was released on May 22nd, six days before being owned by the USDA.

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. As a consequence, hemp is not legal in Idaho.

Nope.

Based on the detailed USDA argument, federal law, bipartisan and public support in Idaho for interstate hemp transport, I’d put money on Big Sky Scientific winning in its lawsuit against Idaho State Police. Charges should be dropped against the driver, and ISP should compensate Big Sky for its lost product… a shame because that will come from public coffers.

Three and a half tons of hemp is a lot of potatoes.

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