Photo of mature hemp plant

Idaho State Police seized nearly 7,000 pounds of what they are calling “illicit marijuana” from a truck shipping the crop from Oregon to Colorado. Idaho isn’t a legal cannabis state, so makes sense…right?

Well, not so fast. This story gets a little more complicated. The truck’s bill of landing referred to the shipment as industrial hemp, the farm from which the crop was bought is a licensed industrial hemp grower in Oregon, and the Colorado company that bought the goods is a licensed hemp processor. Not to mention, the federal government just legalized hemp.

The truck driver is now facing a felony drug trafficking charge, with a possible prison sentence of at least five years and up to $15,000 in fines. He was released on a $100,000 bond.

By all accounts, this is the first major attempt to circumvent the 2018 Farm Bill, which legalized the sale and cultivation of hemp on the federal level and protects the interstate commerce of the crop.

The Legal Difference Between Hemp & Cannabis

Before we dive into more details on this specific case, it’s important to have a basic understanding of the difference between hemp and cannabis.

Hemp (which is now federally legal thanks to the 2018 Farm Bill) and cannabis (still federally illegal) are two different varieties of the same plant: cannabis sativa L. They look the same, smell the same, and share many of the same chemical compounds.

The main difference between hemp and cannabis is that hemp, by law, must have less than .3% THC, the chemical compound in cannabis that makes a person feel high. With such a miniscule amount of THC in hemp, it is considered non-psychoactive. So among many important lessons you’ll learn in this blog post, one is: Don’t look to industrial hemp to get you high.

Considering the near identical nature of hemp and cannabis, it’s reasonable that an untrained and uninformed officer could confuse the two crops. What’s unreasonable, as argued by the truck driver’s lawyer, is that a man is facing many years in prison and thousands of dollars in fines (not including legal fees) for a product Congress just voted to legalize, specifically protecting the interstate commerce of hemp.

Colorado Hemp-CBD Processor Sues Idaho

The Colorado-based company Big Sky is suing to get their hemp back. And the Idaho State Police and Ada County prosecutors are pushing back.

Big Sky’s Argument:

Thanks to the 2018 Farm Bill, hemp is now a federally legal crop so long as it tests below .3% THC.

The hemp was grown on a licensed industrial hemp farm, approved by the Oregon Department of Agriculture. Big Sky tested 19 different samples from said hemp farm and all came back with a mere .043% THC — that is well below the federally permitted level.

As such, the Idaho police and prosecutors are violating the 2018 Farm Bill (which legalized hemp federally) and the commerce clause of the U.S. Constitution (which says no state can enact laws that prohibit legal goods from being transported through their state). So while the 2018 Farm Bill does allow states to outlaw the cultivation and sale of hemp, they cannot prevent industrial hemp from being transported through their state.

Idaho State Police & Ada County Prosecutor’s Argument:

According to Idaho law, any product with any amount of THC is illegal… even if that falls well below the federally legal limit. In a statement to CNN, Idaho State Police public information officer Timothy Masano said, “Idaho State Police troopers will continue to aggressively enforce Idaho laws.”

In addition, Ada County Prosecuting Attorney Jan Bennetts makes the argument that the hemp itself was not cultivated in a legal way. She notes that the state of Oregon, where the hemp was legally grown according to state law, does not have an approved plan in place to regulate hemp production, as required by the 2018 Farm Bill.

Failure of Hemp & Cannabis Testing

One major issue this debacle highlights is the lack of nuanced testing and training around hemp and cannabis. As more states legalize cannabis and the federal government makes sweeping changes to hemp laws, it’s vital that law enforcement around the country keeps up.

It is reminiscent of another testing failure that plagues legal cannabis states when it comes to drugged driving. While there are tests to see whether a driver has THC in their system, THC can remain in a person’s system for weeks after consumption. These tests are wholly unable to tell if someone was under the influence of THC while driving or smoked a joint two days prior.

What Does This Mean for Hemp Companies?

For the time being, Gleam Law is advising all of our hemp clients to avoid shipping industrial hemp through Idaho until this is sorted out. As of now, it seems clear that Idaho State Patrol is taking the position that industrial hemp (now federally legal) is the same as cannabis (federally illegal) and will act accordingly.

It’s wise for all hemp companies to keep a close watch on the developments of this case. No matter which way the court rules, it will provide necessary clarity into the new world of legalized hemp in America.

If you are a hemp cultivator, hemp processor, or hemp brand and need help making sense of this news, we’re here for you. Give us a call and we can help make sense of this murky hemp legal landscape together.