Can SC Ban Smokable Hemp? A District Court in Indiana Says No…

Can SC ban smokable hemp?

The federal government and the State of South Carolina have legalized hemp – cannabis plants that have a THC content of .3% or less and that cannot be used to “get high.”

SC law enforcement is confused about whether it is now legal, though – does the Hemp Farming Act make it a crime to cultivate hemp or to possess smokable hemp?

Although SC’s Hemp Farming Act says that unlicensed cultivation of hemp or possession of unprocessed hemp is “unlawful,” it does not make it a criminal offense or provide criminal penalties. Despite this, SC authorities have pushed for the arrest of persons in possession of smokable hemp, and, in 2019, they arrested a hemp farmer in Harleyville, SC for “unlawful cultivation of hemp.”

SC law enforcement wants possession of smokable hemp to be a crime, but the language of the Hemp Farming Act does not support that. And a federal district court in Indiana has ruled that Indiana’s ban on smokable hemp violates provisions of the federal 2018 Farm Bill…

Will SC Attempt to Ban Smokable Hemp?

SC law enforcement has warned businesses that they believe it is a crime to sell or possess “smokable hemp,” and they have received some encouragement from a somewhat confused AG Opinion that was issued a few years ago.

In 2019, law enforcement in Harleyville, SC, arrested a man and destroyed an entire hemp crop because he did not provide accurate GPS coordinates to the Department of Agriculture for one of his fields. He was charged with “unlawful cultivation of hemp,” which does not appear to even be a crime…

It looks like SC law enforcement would like to see a ban on smokable hemp, similar to the one that was just shot down in Indiana…

What’s the Issue with Smokable Hemp In SC?

SC law enforcement is not happy about the appearance of “smokable hemp,” which is indistinguishable from marijuana – it looks like marijuana, smells like marijuana, and they have no way of testing the THC content on the roadside.

Arguably, the smell of marijuana in SC should no longer be probable cause for an officer to search a vehicle or obtain a search warrant in SC. The smell of marijuana is the same as the smell of hemp, and the odor of a thing that is perfectly legal cannot be probable cause to search a person, can it?

SC law enforcement wants to get around this and other issues that were created by the legalization of hemp by declaring that possession of smokable hemp is still a crime.

Is it?

Is Possession of Smokable Hemp a Crime in SC?

The 2018 Farm Bill removed hemp with less than .3% THC content from the Controlled Substances Act. It authorized states to legalize hemp possession and cultivation and to regulate hemp within their borders, but it also prohibits states from interfering with the transportation of hemp across their borders.

The 2019 SC Hemp Farming Act authorized the cultivation, sale, and possession of hemp in SC – hemp farmers must comply with certain requirements and apply for a permit from the SC Department of Agriculture.

It states that it “is unlawful for a person to cultivate, handle, or process hemp in this State without a hemp license issued by the department pursuant to the state plan.” That means that it is unlawful to grow hemp without a permit or to possess unprocessed hemp without a permit.

The law does not say that it is a crime to possess or cultivate hemp, however.

“Unlawful” can mean much more than “criminal.” For example, in the same Act, the legislature expressly made it a crime to grow, sell, or possess marijuana using hemp as a “cover” for their operation. Any person who does “is guilty of a misdemeanor and, upon conviction, must be imprisoned not more than three years, fined not more than three thousand dollars, or both.”

If the legislature intended unpermitted cultivation or possession of hemp to be a crime, they would have said so, using the same or similar language that they have used for other criminal offenses…

Even if SC courts agree that “unlawful” means “a crime,” would possession of smokable hemp be illegal in SC?

Is Smokable Hemp “Processed?”

As other SC defense attorneys have noted here and here, smokable hemp has been processed before it is made available for sale. Why does that matter?

  1. The Hemp Farming Act legalized hemp.
  2. But it is still “unlawful” to possess unprocessed hemp without a permit.
  3. The law says that “[u]nprocessed or raw plant material, including nonsterilized hemp seeds, is not considered a hemp product.”
  4. “Processing” is defined as “converting an agricultural commodity into a marketable form.”

The AG opinion linked to above concludes, without explanation, that smokable hemp is not “processed,” and therefore it is “unlawful.”

Smokable hemp is processed per the statutory definition. When a person buys their smokable hemp, it is not “raw plant material.”

Before the consumer puts in their pocket and walks out of the store, it was:

  • Harvested,
  • The flowers were trimmed (people smoke the flower, not the leaves),
  • Dried,
  • Cured, and
  • Packaged for sale.

In other words, processed.

The sale or possession of smokable hemp is not a crime in SC, although your local police may not have gotten the memo…

What if the SC legislature made it a crime with new legislation? Or, what if prosecutors attempt to bring cases based on the Attorney General’s “unprocessed” theory?

At least one federal district court has already shot down both ideas.

Southern District of Indiana Issues Injunction

The US District Court for the Southern District of Indiana issued an injunction prohibiting the state from enforcing their ban on smokable hemp, because:

  1. Although it allows states to regulate hemp production, the federal 2018 Farm Bill expressly prohibited states from banning smokable hemp, at least when the law can be applied to transportation of hemp through the state:

“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, and

  1. The 2018 Farm Bill also preempts any state laws that conflict with it. The Court agreed with the plaintiffs “that the challenged provisions of SEA 516 criminalizing smokable hemp constitute an obstacle to satisfying the 2018 Farm Bill’s objective of legalizing all low-THC hemp products, including all hemp derivatives.”

If SC were to pass a law banning smokable hemp products (or any hemp products), it would face the same challenges that made Indiana’s law unenforceable. If SC were to interpret the SC Hemp Farming Act’s provisions as a ban on smokable hemp, the same principles would still make it unenforceable…

SC Marijuana Defense Lawyer in Myrtle Beach

Daniel A. Selwa is a criminal defense attorney in Myrtle Beach, SC.

Call now at (843) 492-5449 or send an email for a free consultation to discuss your case and how we can help.

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