Federal law trumps state law on transporting hemp, USDA counsel says

June 5, 2019

Chuck Robinson

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Transporting hemp across state lines is protected by federal law, according to a memorandum from the U.S. Department of Agriculture general counsel.

Even though transporting hemp in interstate commerce is now legal because of the 2018 farm bill, which was signed into law in December, states and tribes still have authority to regulate or prohibit hemp production in their own jurisdictions, according to the memorandum.

Stephen Vaden, USDA general counsel, issued the memorandum May 28 to clarify issues with federal law removing nonnarcotic hemp from the list of controlled substances. Marijuana, which comes from the same species of plant but has more euphoria-inducing THC, remains on the controlled substance list.

“While a state or an Indian tribe cannot block the shipment of hemp through that state or tribal territory, it may continue to enforce state or tribal laws prohibiting the growing of hemp in that state or tribal territory,” according to the USDA general counsel’s memo.

Meanwhile, two truck drivers await sentencing for transporting hemp cargos across Idaho.

Erich C. Eisenhart and Andrew K. D’Addario are scheduled for sentencing on June 25 in Ada County, Idaho.

Also, driver Denis Palamarchuk still has a jury trial scheduled on Oct. 2 for hauling a cargo of hemp on an Idaho interstate highway.

The memorandum addressed Palamarchuk’s case specifically, referencing the name of the company that owns the cargo that was seized when Palamarchuk was arrested. Palamarchuk was arrested Jan. 24, for hauling a trailer loaded with 6,700 pounds of hemp for Big Sky Scientific, Boise, Idaho.

Vaden’s memorandum discusses the county magistrate Idaho who ruled interstate commerce protections for transporting hemp in the 2018 bill only apply to crops and products produced since the bill was signed into law. There were stricter regulation in place as part of a hemp pilot program in the 2014 farm bill.

“This office does not concur with the reasoning of the magistrate regarding the shipment of hemp lawfully produced under the 2014 farm bill,” reads the memorandum, which also noted that the USDA is not a party in Big Sky Scientific LLC v. Idaho State Police.

“I find his opinion denying a preliminary injunction unpersuasive,” Vaden wrote in the memo.

Another case cited in the memorandum, United States v. Mallory, “the court permitted the defendants to transport the hemp product across state lines to Pennsylvania for processing and sale.”

The case “expressly allows hemp, its seeds and hemp-derived products to be transported across state lines,” which is consistent with Vaden’s findings.

Read the USDA memorandum on transporting hemp here.

Previous coverage:

Truckers transporting hemp deserve compassion from Idaho county prosecutor

Chuck Robinson

Chuck Robinson formerly was senior copy editor for a weekly trade publication serving the fresh produce industry. He has served trade publications, horticultural journals and community newspapers for 25 years.