Still Smokin’: What In the World Is Georgia Going To Do About Smokeable Hemp?

Many believe that the nationwide decriminalization of marijuana will be a potential unintended consequence of the federal legalization of hemp vis-à-vis the 2018 Farm Bill.

Legalization and decriminalization are distinct terms. Legalization, in this context, means that the U.S. Government, along with a large majority of states, has passed laws permitting the possession and trade in industrial hemp and its products. Decriminalization, on the other hand, does not mean that possession or trade in a product is legal. It means, for one reason or another, that the laws making certain behavior, like possessing or trading in marijuana, punishable by fine or deprivation of liberty, e.g. imprisonment, cannot or will not be enforced.

A flashpoint for the decriminalization debate has been the conundrum of what to do about smokeable hemp, which is exactly what it sounds like: raw, unprocessed cannabis with a THC-Δ9 level of .3 or less and is ingested by smoking. With little or no THC-Δ9, the psychoactive ingredient in cannabis, why smoke hemp at all? The short answer is that users smoke hemp to get the benefits of marijuana, which users have claimed to alleviate everything from anxiety to the side effects of cancer treatment, without its psychoactive effects. Many users prefer smoking hemp to treating themselves with CBD creams and oils because hemp delivers full spectrum, i.e. all cannabinoids and not just CBD which, by the way, smokeable delivers at higher levels than, for instance, oil. Smoking hemp also delivers cannabinoids to the bloodstream more quickly than a topical treatment, thus delivering its benefit to the user more quickly. Farmers favor growing smokeable hemp because it costs almost nothing to process and is therefore highly profitable.

With so many benefits, you may think states are encouraging the production and sale of smokeable, but that has not been the case in a lot of jurisdictions. Notably, Texas, Kentucky, Louisiana, N.C. and S.C. have either banned it or are trying to ban it. N.C. has had a contentious fight over smokeable in its legislature and the battle, nearly a year old now, is not over yet. The USDA’s interim final rules do not address smokeable at all, primarily because they only provide baseline regulations for issues related to growing as opposed to processing or selling hemp.

The P.C. Police

The conundrum for the paleopuritans in state legislatures who wish to legalize hemp, while keeping marijuana illegal, is that marijuana is indistinct from raw hemp, but for their THC content, which can only be measured through scientific testing. Even trained dogs cannot tell the difference (that’s a good boy!). Scientific testing is expensive (about $80/test in Georgia) and thus impractical for seizures of smaller quantities of cannabis, be it hemp or marijuana. More importantly, law enforcement officers lack probable cause (or even – I would argue – reasonable suspicion) to stop citizens and/or seize their property based on possession of any amount of cannabis (from a gram to a truckload) because it may be legal hemp and they therefore have no way of knowing that that citizen isengaged in completely legal activity. This means that I could drive a truck filled with a few hundred pounds of pungent, unpackaged marijuana right down Peachtree Street with Cypress Hill blaring from my stereo, a deadhead sticker on the back and a t-shirt with a huge cannabis leaf on it and, as long as smokeable is legal, police would have no cause to stop me and seize the product so that it could be tested. (Editor’s note: I do not advise taking this action, nor doing anything that you know violates the law, like possessing marijuana in the State of Georgia without a medical marijuana license).

Pat McElraft, a representative in N.C.’s state house explained, “[m]y philosophy right now is, we are actually legalizing recreational marijuana if we don’t listen to our law enforcement and do something about this.” He speaks for many others on that side of this debate. Companies are rushing to develop reliable roadside tests for THC content and this may ultimately be the solution, but for now, I am not aware that any law enforcement agency (at least in Georgia) routinely uses such tests.

Indiana Gets Smoked

The latest front in this battle is Indiana, where the legislature tried to ban smokeable, but was rebuffed by a federal judge, who barred enforcement of the law because it conflicted with the federal law permitting, at a minimum, interstate transportation of hemp. The logic of the ruling was simple: in order to transport hemp interstate, one must possess it, so if all forms of possession of smokeable, i.e. raw hemp, was unlawful, so too was interstate transportation and the 2018 Farm Bill would not tolerate that.

As a secondary matter, the court more reluctantly ruled that the 2018 Farm Bill, “reflect[ed] 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.” Thus, it found, there was “at least some likelihood” that criminalizing smokeable, “frustrates these congressional purposes and objectives,” and therefore violated constitutional supremacy principles.

This second argument has legs, in my opinion. If Congress’s objective in the 2018 Farm Bill was to expand the definition of legal hemp to include “all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers … with a Δ9 THC concentration of not more than .03 percent,” so that the public would benefit from its many uses, states cannot then choose which kinds of hemp and its products they will and will not allow. Banning smokeable is either a ban on hemp itself or a hemp product and opens the door for other states to ban, for instance, hemp clothing, hemp plastics made from waste or basically any CBD product. The exception would be capable of swallowing the rule and that was not Congress’s intent.

Georgia On My Mind

In Georgia, there is currently no statute restricting the mere possession of unprocessed hemp in any quantity. The DOA’s regulations do state that only licensees and permittees may, “store” hemp, but those same regulations distinguish between possessing and storing hemp, so I do think Georgia believes there is a difference. My opinion is that, without a statute stating the contrary, if you simply possess hundreds of pounds of hemp in any location, you have not, by that fact alone, violated the law.

Once you do something beyond possessing the hemp, though, you are taking big risks under the law. It is presently unlawful for permittees “to offer for sale at retailthe unprocessed flower or leaves of the hemp plant.” Could you offer smokeable for sale at retail if you were nota permittee? No. It’s unlawful to process hemp, i.e. “convert[]” it, “into a legally marketable form,” without a processing permit in Georgia. So if you package hemp in any way that allows it to be sold at retail, and I think that could be as simple as slapping a pricetag on it or even just putting it out on a shelf, you have processed it and done so without a permit.

Storage vs. Possession

What if you receive hemp from another state packed in large bundles and then sell it at wholesale the same way it was received? Have you done anything unlawful? My answer would be, “no,” because, again, you are merely possessing it without offering for sale at retail or converting it into a legally marketable form. This may hinge on what the DOA’s regs mean by “stor[ing]” the hemp, but again, I do not believe possessing and storing are the same thing. It might seem like hair-splitting to argue that the term “store” is vague, but the references in the regs indicate that “stor[ing]” hemp means something more than briefly possessing it, indicating that time may be the distinguishing factor. This is all a guessing game because neither term is specifically defined in the statutory scheme or the regs.

The distinction is important because, if storing is not possessing, references to storing hemp do not exclude the legality of possessing it without storing it. Even so, I think the State of Georgia likely to accuse anyone found to possess many pounds of hemp, with license or permit to go with it, of a crime. So engaging in that activity may well get you a front row seat to the court battle over what the distinction is (I am happy to help spell that out if you do run into trouble).

Clear As Mud

So what happens if the State of Georgia attempts to prosecute someone who received a load of hemp, packed by the pound and unmodified once it arrived in the state, but does not have a processor’s permit, under this clear-as-mud statute? What law was violated? Georgia will respond, “the one that says no offering for sale at retail the unprocessed flower or leaves of the hemp plant.” There are many issues there. First, what does it mean that one is restricted from offering unprocessed flower “at retail?” That term is not defined in the statute, nor is it distinguished from, say, wholesale. Is it illegal to sell raw hemp by the ounce, but not by the pound?

Even worse, what is the punishment if I do violate the statute? The Hemp Farming Act does not proscribe any penalties for doing anything it defines as, “unlawful.” It states, “[i]f the Commissioner determines that a licensee or permittee has violated state law with a culpable mental state greater than negligence, the Commissioner shall immediately report the licensee or permittee to the United States Attorney General and the state Attorney General, and subsection (a) of this Code section [stating that violations of the hemp laws will not be considered criminal] shall not apply to the violation.” It says nothing about what happens if one is neither a licensee, nor a permittee.

Even eschewing that flaw, the Chapter does not say what happens when the U.S. Attorney or the A.G. review the case. I know one thing: they cannot prosecute someone for possessing or distributing hemp as a controlled substance, as they would marijuana. The definition of “marijuana” in Georgia’s Controlled Substances Act does, “not include hemp or hemp products.” This roughly corresponds with the definition contained in the federal CSA. So Georgia’s laws are completely circular: it’s unlawful to do much of anything beyond possess raw hemp, but hemp is not unlawful. The solution may be Georgia’s general punishment statute which was referenced in an early version of HB 847. That statute, however, is rarely invoked and I think the fact that a previous version referenced it and then discarded it opens the door for anyone charged to argue that the legislature specifically intended for it not to apply to the Hemp Farming Act.

$25,000 For A Cigarette?

I do not think requiring someone to have a permit before they can merely possess hemp works, either. What happens if I as a citizen of Florida or Tennessee buy a quantity of smokeable where it is legal to do so and then bring it on a trip to, or even just through, Georgia for my own personal use? Do I need to plunk down $25,000 for a processor permit to smoke a hemp cigarette? Although the current statute in Georgia does not address this concern, the DOA’s regs and HB 847 state that anyone “shipping, transporting or delivering hemp,” regardless of quantity, “must also carry a bill of lading that includes: name and address of the owner of the hemp; point of origin; point of delivery, including name and address; kind and quantity of packages or, if in bulk, the total quantity of hemp in the shipment and date of shipment.” Practically speaking I am not going to have all that information if I am just carrying a user amount of hemp flower which I purchased legally outside of Georgia and am, under the 2018 Farm Bill, legally carrying through the state.

The problem for anyone trying to get into the business of smokeable is that the law is in flux right now, a lot of the terminology in it is unclear and nobody, including Georgia’s legislature, seems to know what is and isn’t legal. The problem for legislators is that there is no way to thread the needle of keeping hemp legal, but making it illegal to possess raw hemp, i.e. smokeable. To me this means that there is also no practical way successfully to prosecute someone for a crime related to the possession or sale of smokeable, in any quantity. On the other hand, anyone wanting to engage in that activity should probably understand that they will have to go through being arrested and going to court before that situation is clarified.

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