USDA general counsel’s opinion sides with the Mallory decision for those looking to ship lawfully produced hemp in interstate commerce and against States attempting to stop its transportation.
In what is undoubtedly a nod to recent State action and current pending litigation regarding the interstate transportation of Farm Bill compliant hemp, the May 28th US Department of Agriculture general counsel legal opinion provided some valuable guidance relative to the interstate shipment of hemp grown pursuant to the 2014 and 2018 Farm Bills.
In particular the GC’s opinion clarified the USDA stance on the lawful transportation of hemp grown pursuant to the 2014 Farm Bill and laid out its position regarding 2018 Farm Bill compliant hemp for immediate future when the USDA will be releasing regulations for the 2018 Farm Bill.
The conclusion from the USDA’s GC opinion is that States may not prohibit the interstate transportation or shipment of Farm Bill compliant hemp without regard to whether it was produced under the 2018 or 2014 Farm bills.
You can read the full opinion letter here.
The opinion reiterates that the 2018 Farm Bill removed hemp from schedule 1 of the Controlled Substances Act – meaning it is no longer a controlled substance, provided it meets the definition of hemp containing not more than 0.3% THC on the dry weight basis..
The opinion also finds that after the USDA publishes regulations implementing new hemp production provisions of the 2018 Farm Bill, States and Indian Tribes may not prohibit the interstate transportation of hemp lawfully produced under a State or tribal plan or under a license issued under the forthcoming USDA plan.
Importantly the opinion also finds that States and Indian tribes may not prohibit the interstate transportation of hemp lawfully produced under the 2014 Farm Bill. This may factor into the decision of the 9th Circuit currently reviewing the district court decision referenced above in Big Sky Scientific v. Idaho State Police which is at odds with the US v. Mallory decision from earlier this year. The two cases are called out in the GC’s opinion with the GC specifically stating that:
A conclusion reached by the Mallory court is consistent with my interpretation that States cannot block the shipment of hemp, whether that hemp is produced under the 2014 farm bill or under a State, Tribal, or Department of plan under the 2018 Farm Bill.
The opinion also states that the USDA expects to issue regulations implementing the new hemp production authority in 2019 and reiterates that there are restrictions on felons growing hemp under the Farm Bills and that States and Indian Tribes are free to create restrictions for hemp within their borders.