The smokable hemp/CBD flower trend immediately blew up once these buds hit the market, and especially once the 2018 Farm Bill legalized hemp at the federal level. Consumers and industry professionals alike, all thought they were in the clear, but without missing a beat, numerous states began trying to impose their own restrictions on hemp, some outright banning it altogether.
When it comes to state vs federal law in the United States, things can get a bit confusing. As per the Supremacy Clause of the U.S. Constitution, federal law typically takes precedence over state law, but that doesn’t mean states aren’t allowed to make their own regulations regarding certain societal issues, based on what makes sense in the geographic area, what the dominant demographic prefers, etc.
For example, gambling is legal at the federal level, but what exactly you’re allowed to do varies from state to state. Hawaii and Utah have a 100% ban on all forms of gambling. Mississippi, Alabama, Alaska, and Nevada allow everything except state-wide lottery gambling. An additional 22 states allow lottery gambling or pari-mutuel betting on horse races, but do not have land-based casinos. So, as you can see, regulations about one activity or substance can really be all over the map.
Such is the case when it comes to cannabis. Marijuana is federally illegal but numerous states have implemented their own medical and recreational programs. On the flip side, hemp (defined as the plant Cannabis sativa L with less than 0.3% tetrahydrocannabinol, or THC) actually IS federally legal – and that includes smokable hemp flowers – but many states and municipalities are banning it within their borders. What states are doing this and why?
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Up until now, it seemed like Georgia was taking a laid-back approach at regulating hemp. This was widely viewed as a good, considering most people have more relaxed views on cannabis use. It got to the point where law enforcement in the Atlanta-metro area stopped making arrests for low-level marijuana offences, because of difficulties telling it apart from smokable hemp flowers without costly lab testing.
Enter House Bill 847, sponsored by Rep. John Corbett, R-Lake Park, which requires people to have farming or processing licenses in order to possess hemp at all. Initially, the bill cited criminal penalties, akin to getting a misdemeanor marijuana conviction, for those caught with hemp unlicensed. However, a revised version removed the penalties. This prompted more questions from prosecutors and others supporting the bill, mainly, how to deal with people arrested for marijuana possession who argue that it’s simply hemp.
Indiana has been trying to ban smokable hemp practically since the day the Farm Bill passed. Back in July 2019, the state effectively prohibited CBD flowers because they are “too difficult to distinguish from marijuana flowers”, but a federal judge deemed it unconstitutional a few months later. You would think the story ends there, but in January 2020, the state of Indiana decided to revive the ban.
Indiana argues that states have the right to make their own laws regarding hemp, which is true, but wholesalers in the area believe that Indiana’s proposed regulations – to ban manufacture, financing, delivery, or possession of smokable hemp – would violate the country’s Commerce Clause regarding interstate transport of goods, as stated in an ongoing lawsuit between 5 hemp companies and the state.
Texas is basically in the same back and forth as many of the other states; they started off by doing a widescale legalization effort only to backtrack once they realized that hemp flowers look just like marijuana flowers [insert eyeroll]. In 2019, HB 1325 aimed to reign in the ropes a bit by allowing the sale, but not manufacture, of smokable hemp products. Now, the Texas Department of State Health Services is looking to ban smokable hemp flowers entirely.
Just like in Indiana, this proposal is being met with obvious backlash. Texas Hemp Growers (association) launched an online petition calling for the TX DSHS to “back off Texas businesses and leave hemp alone.” The advocacy group is also putting together a lawsuit, that will likely end with a federal judge deeming this ban unconstitutional as well.
Louisiana Gov. John Bel Edwards (D) recently signed a bill into law, ACT 344/HB 843, which imposed new regulations on the state’s industrial hemp and CBD industries. The bill includes language that explicitly bans all smokable hemp products, except rolling papers. The full legislation also outlines the requirements for those who continue to do CBD-related business in the state. Updates have been made to the application/permit fees, regulations for the labeling and testing of CBD products, and regulations for testing other industrial hemp-based products.
The legislation included updated penalties for violating the new hemp laws: $300 max fine for the first offence and $1,000 max fine for the second offence. Third and fourth offenses carry fines of up to $5,000. Once again, the reason cited for the ban was the inability of law enforcement officers to differentiate between hemp flowers and marijuana flowers at the time of arrest.
The bill also includes a clause that grants the Louisiana Department of Agriculture and Forestry the authority to issue stop orders for hemp and CBD businesses. Civil fines can be issues by the State Commissioner of Alcohol and Tobacco.
It’s a little odd that all this backtracking is taking place. You’ve likely noticed the pattern here: Farm Bill passes, hemp businesses open up shop, state regulators get uncomfortable, and bans start taking place. Our first example was Indiana’s attempted ban on smokable hemp flowers which fell flat on its face after a federal judge deemed it unconstitutional, on the grounds that this law would impact interstate commerce. They, and others like Texas and Louisiana, are trying to take it too far.
Georgia, on the other hand, took an entirely different approach with the licensing aspect. It allows those in the industry to conduct business in the state, but consumers would not have access to the product. As unfair and downright ridiculous as it seems, we can expect more states to follow in their footsteps until the entire cannabis plant, marijuana and all, is legal at the federal level. Until then, we will continue to suffer through these confusing and turbulent regulatory changes.
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