Smokable Hemp Ban is Unconstitutional: C.Y.Wholesale v. Holcombe, U.S. District Court for the Southern District of Indiana Issues Injunction

A district court in Indiana has issued a preliminary injunction against enforcement of Indiana’s ban on smokable hemp, finding that the smokable hemp ban is unconstitutional because it violates the Supremacy Clause and the Commerce Clause of the US Constitution.

It is not a final determination on the merits, but the Court found that the plaintiffs were likely to succeed on the merits and so issued the injunction.

Hemp is a plant that is used for many purposes, one of which is the beneficial effect smokers claim to get from CBD that is contained in the plant. It is not psychoactive and has an extremely low THC content that is not enough to get a person high. So, why don’t states want people to smoke it?

Why did the district court find that the smokable hemp ban is unconstitutional?

Indiana’s Smokable Hemp Ban is Unconstitutional

Indiana removed industrial hemp (cannabis plants with a THC concentration of .3% or less) from the definition of marijuana after the federal government authorized cultivation and production of hemp.

Once states began to realize the issues they would have in enforcing marijuana laws, however, law enforcement in many states have expressed opposition to the legalization of hemp – it looks like marijuana and smells like marijuana. (If it looks like a duck, walks like a duck, and quacks like a duck, it’s… Actually, Karen, it’s hemp.)

It may end the police practice of searching vehicles based solely on the odor of marijuana – a ubiquitous practice sometimes based in truth and sometimes used as an excuse to search a person when the police would not otherwise have had probable cause. Nationwide, most police departments do not have the ability to test plant material in the field to determine its THC content.

The 2014 Farm Bill

The federal 2014 Farm Bill was the first step towards allowing states to grow industrial hemp, although it was limited to “research purposes.” Although the 2014 Farm Bill authorized states to grow hemp under certain conditions, it did not remove hemp from the Controlled Substances Act.

The following month, however, Indiana authorized cultivation of hemp pursuant to the 2014 Farm Bill and removed hemp from its definition of marijuana:

On March 26, 2014, then-Governor Mike Pence signed into law Senate Enrolled Act 357, P.L. 165-2014 (“SEA 357”), codified at Indiana Code § 15-15-13, et seq., authorizing the production, possession, scientific study, and commerce of industrial hemp in Indiana in accordance with the 2014 Farm Bill’s requirements. SEA 357 also removed industrial hemp from Indiana’s definition of “marijuana” in recognition of its status as a regulated agricultural commodity as well as its low THC-concentration, which renders it non-psychoactive. IND.CODE § 35-48-1-19.

The 2018 Farm Bill

The federal 2018 Farm Bill removed many of the restrictions in the 2014 Farm Bill, allowing states to cultivate hemp for commercial purposes and removing hemp from the Controlled Substances Act.

It has a provision that permits states to regulate the production of hemp, but it also contains a provision that prohibits states from restricting the transport of hemp in interstate commerce:

The 2018 Farm Bill explicitly states that “No Preemption” is intended of any law of a state or Indian tribe that “regulates the production of hemp” and “is more stringent” than federal law. 2018 Farm Bill § 10113. The 2018 Farm Bill is also clear in prohibiting states from restricting the transportation of hemp in interstate commerce…

The Conference Report for the 2018 Farm Bill addresses these provisions, explaining that, “[w]hile states and Indian tribes may limit the production and sale of hemp and hemp products within their borders, … such states and Indian tribes [are not permitted] to limit the transportation or shipment of hemp or hemp products through the state or Indian territory.” Conf. Rep. at 739.

Indiana’s Smokable Hemp Ban

Indiana then passed another law that authorized the production of hemp but made an exception for smokable hemp. The law made it a crime to possess smokable hemp:

SEA 516 legalizes the commercial production of hemp in Indiana, but criminalizes the manufacture, finance, delivery, and possession of a particular subset of hemp, to wit, “smokable hemp,” which SEA 516 defines as “a product containing not more than three-tenths percent (0.3%) delta-9-tetrahydrocannabinol (THC), including precursors and derivatives of THC, in a form that allows THC to be introduced into the human body by inhalation of smoke,” which specifically includes the derivatives “hemp bud” and “hemp flower.” IND.CODE § 35-48-1-26.6.

In response to the smokable hemp ban, several companies that sell smokable hemp products filed suit in federal court, asking the court to issue an injunction against enforcement of the statute.

Why the Smokable Hemp Ban is Unconstitutional

The district court issued the preliminary injunction, finding that the plaintiffs will most likely be successful in their claim and that the smokable hemp ban is unconstitutional because it violates the Supremacy Clause and the Commerce Clause of the US Constitution.

Express Preemption

The smokable hemp ban is unconstitutional because the 2018 Farm Bill expressly preempted Indiana’s ban:

Here, the 2018 Farm Bill explicitly provides as follows: “No State or Indian Tribe shall prohibit the transportation or shipment of hemp or hemp products produced in accordance with subtitle G of the Agricultural Marketing Act of 1946 (as added by section 10113) through the State or the territory of the Indian Tribe, as applicable.” 2018 Farm Bill § 10114.

Although Indiana might be permitted to ban possession of smokable hemp within its borders (but see Conflict Preemption below), the law also applies to persons who are transporting hemp through Indiana, whether it is an individual or a truck driver delivering products. The Court agreed with the plaintiffs’ argument that…

…by criminalizing the manufacture, finance, delivery, or possession of smokable hemp, which is defined under SEA 516 to specifically include hemp bud and hemp flower, the Act precludes the transportation of hemp or hemp products in or through Indiana, in direct contravention of the 2018 Farm Bill’s express prohibition on restricting the transportation of hemp and its derivatives in interstate commerce.

Conflict Preemption

Although the Court says it is a closer call, they also found that the plaintiffs were likely to succeed in their argument that the federal statute’s intent to legalize hemp preempts any state laws that criminalize hemp:

Here, the plain language of the 2018 Farm Bill, as well as statements from its legislative sponsors, reflect Congress’s intent to de-stigmatize and legalize all low-THC hemp, including its derivatives and extracts, and to treat hemp as a regulated agricultural commodity in the United States.

The Indiana ban on smokable hemp is expressly preempted because the 2018 Farm Bill says that the states will not interfere with the transportation of hemp, but it may also be “impliedly” preempted (my term, not the court’s) because the federal legislature intended to make hemp legal. Any state law that conflicts with the legislature’s intent to legalize hemp is therefore unenforceable.

Federal Appellate Attorney in Columbia, SC

Elizabeth Franklin-Best is a federal white collar criminal defense and federal appeals lawyer located in Columbia, SC.

For more information, call us at (803) 331-3421 or send us an email to set up a consultation about your case.