Idaho Takes Steps Toward Hemp Legalization, but Legal Disputes Remain

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While hemp possession is still illegal, the state’s governor has temporarily legalized interstate transportation.

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February 4, 2020

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As many states press forward with hemp cultivation plans for the 2020 growing season, Idaho is still trying to hash out the crop’s legality.

Lawmakers announced in early January that they will once again be considering legalizing hemp in the state. But a lag in legislative action and previous legal disputes regarding hemp transportation—Big Sky Scientific v. Idaho State Police, et al. is still moving through courts—have earned the state notoriety among the industry for its hesitation toward the crop.

Idaho is one of only three states in the country with no framework in place to allow farmers to legally grow hemp. (The other two states are Mississippi and South Dakota.) Idaho currently prohibits hemp possession unless it contains 0% tetrahydrocannabinol (THC). The state’s board of pharmacy has also issued statements cautioning pharmacies against possessing or selling hemp-derived cannabidiol (CBD) products, adding that manufacturers’ claims of THC-free products would not protect them from administrative, civil or criminal penalties. 

Gov. Brad Little (R) issued an executive order Nov. 19, 2019, legalizing interstate transport of hemp in response to the U.S. Department of Agriculture’s (USDA) recent publication of its interim final rule (IFR). Among other provisions, the IFR prevents states from prohibiting the transportation or shipment of hemp produced in compliance with the Agriculture Improvement Act of 2018 (the 2018 Farm Bill).

“Upon publication of those [IFRs], Idaho law now likely conflicts with federal law with respect to interstate transportation of hemp,” according to a news release from the governor’s office announcing the executive order.

Little’s executive order lays out protocol for transporters to follow when driving hemp through the state, including:

  • Declaring the shipment at the first port of entry into the state.
  • Having a variety of paperwork and verification ready, including:
    • affirmation that the vehicle doesn’t contain any illicit drugs;
    • verification, including a copy of the hemp production license, that it was grown by a licensed producer;
    • testing results from a lab registered by the Drug Enforcement Administration (DEA) that confirm the hemp contains no more than 0.3% THC; and
    • a bill of lading containing the shipment contents, origination, lot number, destination of the hemp, load weight and the type of vehicle transporting the hemp.
  • Labeling receptacles with the producer’s name and address, the quantity of the hemp and the lot number to correspond with the other required documentation.
  • Consenting to inspection of the supply, if asked, and randomly selected sampling for off-site testing by the Idaho State Police.

Once inspection is complete, transporters will be given an inspection report they can present to an officer if stopped. The executive order also encourages transporters to avoid “unnecessary delay” moving through the state, as possession of hemp remains illegal. In addition, hemp can only be transported on, or within the immediate vicinity of, interstate highways save for a few exceptions, according to the order.

The release says the executive order is a “stopgap measure until the Idaho Legislature enacts a more permanent solution.”

The Idaho Legislature has examined the issue but could not reach a consensus by the time the state’s 2019 legislative session ended in April. One bill would have legalized the research, production and regulation of hemp, while another would have regulated interstate transport.

“From the start, I have stated I am not opposed to a new crop such as hemp, but that we need to be sure the production and shipping of industrial hemp is not a front to smuggle illicit drugs into and around Idaho,” said Little, who assumed office Jan. 7, 2019, in a public statement. “We expected new federal rules would eventually result in hemp lawfully traveling across state lines.

"My administration has prepared for this development, working with partners in law enforcement and other interested parties. As it turns out, the rules were published at a time when the Idaho Legislature could not quickly respond.”

The executive order is in effect for any interstate transportation that took place on or after Oct. 31, 2019.

Such is not the case for three truckers who faced legal charges for transporting hemp through the state before the order took effect. In two separate incidents—one in April 2018 and one in January 2019—police in Ada County seized the shipments and charged the truckers with trafficking marijuana.

After each served jail time, all three drivers settled their cases with the Ada County Prosecutor’s Office in September 2019 by pleading guilty to misdemeanors. Each had to pay fees and restitution. They received withheld judgments at their sentencing, meaning their cases will be dismissed if they successfully complete their unsupervised probation.

Despite the resolved charges and recent executive order, Big Sky Scientific, a CBD company based in Sun River, Mont., is still facing legal battles in Idaho after police permanently confiscated nearly 7,000 pounds of hemp from the driver in January 2019. Big Sky has sued state police following the incident.

As of January 2020, the case continued drudging through state court with no clear end in sight.

Theresa Bennett is associate editor of Hemp Grower and sister magazine Cannabis Business Times.