Timing, extent of hemp ban keep farm bill in limbo

Smokable hemp continues to stall lawmakers trying to pass the farm bill. 

The Senate unanimously voted Tuesday, Oct. 1, to reject the House’s version of the 2019 Farm Act, which would ban smokable hemp by May 2020. Now, it’s up to the House and Senate on whether they will appoint conferees to sort out the two chambers’ differences. Exacerbating the conflict is the fact a federal judge recently threw out a smokable hemp ban in Indiana.

Marijuana and the dry, smokable version of hemp are indistinguishable by sight or smell. This makes it impossible for law enforcement to carry out marijuana laws while also letting people smoke hemp, which, unlike marijuana, can’t get you high.

“I think at this juncture, legislators don’t know which way to go,” said Blake Butler, executive director of the N.C. Industrial Hemp Association. “Nobody wants to hurt the farmer, and no one wants law enforcement to be mad at them. It’s hard to find a happy medium.”

Rep. Jimmy Dixon, R-Duplin, who is leading the movement for the ban, said the Senate’s vote didn’t come as a surprise. Dixon sides with law enforcement, saying allowing smokable hemp virtually legalizes marijuana. He also suggests the estimated returns on growing hemp were exaggerated, at least in some cases.

“We want it to be a viable part of our agriculture,” Dixon said. “A lot of people were needing relief from several years of poor farming conditions, but they may have been a little too enthusiastic.”

Dixon says he’s spoken with 14 of the 19 licensed growers in his district of Duplin County. Only one said he’d leave the hemp business altogether if the General Assembly bans the smokable version. Smokable hemp accounts for about 20% to 25% of the North Carolina hemp industry, according to Butler. It’s grown for many other purposes, including CBD oil and fiber. 

Sen. Brent Jackson, R-Sampson, is pushing to extend the ban seven months further, to December 2020. This would ensure the General Assembly is in session when the proposed ban goes into place, his office said in an email. Jackson met with law enforcement officials today to discuss the bill. 

“The hope is that the study and stakeholders process will conclude with their findings on best practices before then,” his office said. 

In an email to constituents, Jackson said the Senate rejected the House bill to prevent disastrous consequences for the state’s fledgling hemp industry.

“These changes [in the House-passed version] would hamstring a growing industry for rural North Carolina. They would also criminalize buying and selling hemp products that are legal now. I believe that the S.B. 315, as created by the Senate, protects and promotes our Ag industry and does not attempt to handcuff our farmers both by government regulation and criminal liability.”

A ban could result in a lawsuit

Indiana may serve as a warning to N.C. lawmakers against a smokable hemp ban. On Sept. 17, a federal judge ruled Indiana’s ban unconstitutional. Butler’s organization has already threatened to take legal action if the bill passes.

“We will sue North Carolina the day after the governor signs that bill,” Butler said. “We’ve been very clear to everybody on that because the bill would be defying federal law.”

Past rulings in marijuana cases have allowed for conflicting state and federal laws, Keith Stroup, legal counsel for the National Organization for Reform of Marijuana Laws, says in an email. In Gonzales v. Raich, a case concerning whether federal or state laws were supreme regarding the medical use of marijuana, the Supreme Court found there was concurrent jurisdiction, and that both state and federal laws were valid, even though they conflicted. Stroup said based on this ruling, he’s “not certain” other courts will follow the Indiana decision.

But a ban could also violate the U.S. Constitution’s interstate commerce clause, said Leland Berger, a marijuana defense lawyer based in Portland, Oregon. If a ban is put in place, then it could potentially interfere with hemp transportation between other states where the smokable plant is legal. The Indiana case relied upon the commerce clause, and a North Carolina case could just as well.

“It’s always hard to determine what judges in circuits around the country will do going forward,” Berger said. “But I think it’s pretty clear and unambiguous what the provisions say.”