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Law Alert: Idaho and Other States Dig In Their Heels on Interstate Hemp Transportation

by Nathaniel G. Saylor, Brandon K. Wiseman

February 7, 2019

 

Idaho and Other States Dig In Their Heels on Interstate Hemp Transportation

President Trump signed the 2018 Farm Bill into law in late December 2018, which, among other things, removed hemp (assuming it contains less than 0.3% THC) and its derivatives from the list of illegal Schedule I controlled substances under the federal Controlled Substances Act. The bill also makes it illegal for the states to prohibit the interstate transportation of hemp through their borders, provided the hemp is produced pursuant to either (1) a state regulatory plan that has been approved by the U.S. Department of Agricultural (USDA), or (2) in the absence of any such state plan, pursuant to the USDA’s own regulatory plan.

Despite Congress’ clear intent to preempt states from regulating the interstate transportation of hemp, some states, including Idaho and Oklahoma, continue to do just that. Last week, the Idaho State Police arrested a driver and impounded a shipment of approximately 6,700 pounds of hemp, which was moving in interstate commerce from Oregon to Colorado and was properly disclosed on the carrier’s bill of lading. Quoted in various news reports, both the Idaho State Police and local prosecutors have stated that hemp—regardless of its THC content—remains illegal under Idaho law and that those caught possessing hemp will be prosecuted under that law.

Shortly after news of the Idaho impoundment broke, the consignee of the shipment filed a lawsuit against the Idaho State Police in federal court, requesting the Court to rule that the product was lawfully moving in interstate commerce and that Idaho wrongfully seized the product. It also filed an emergency motion for a temporary restraining order, demanding the return of the product pending further litigation. Over the weekend, the Court denied the consignee’s motion, reasoning that, until the USDA has approved state regulatory plans or developed its own, it is questionable whether the Farm Bill’s interstate transportation preemption provisions have yet taken effect. The case is Big Sky Scientific, LLC v. Idaho State Police, No. 1:19-cv-0040 CWD (D. Idaho).

The Scopelitis Firm will continue to monitor and report on the Big Sky Scientific case and others like it. In the meantime, carriers should continue to exercise caution in accepting shipments of hemp. Until the USDA has taken steps to approve state regulatory plans and to implement a plan of its own, states are arguably free to continue to regulate interstate shipments of hemp that pass through their borders.

For more information on these developments, contact Nathaniel Saylor or Brandon Wiseman.

 

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Scopelitis Transportation Law Alerts are intended as a report to our clients and friends on legal developments affecting the transportation industry. The published material does not constitute an exhaustive legal study and should not be regarded or relied upon as individual legal advice or opinion.

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