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The Legal Fight in Indiana Over Smokeable Hemp: What’s Happening Now?

Smokeable hemp is banned in Indiana–at least for now–despite legal challenges brought by a group of Indiana hemp growers.

Here’s the background. In 2018, Indiana legislators passed a law (Senate Enrolled Act 516) that legalized the commercial production of hemp but banned smokeable hemp. Under SEA 516, anyone who knowingly possesses, manufactures or delivers smokeable hemp faces a misdemeanor charge.

In June 2019, seven hemp-growing companies sought an injunction, claiming that SEA 16 violated federal law. The group argued that the 2018 Farm Bill legalized all hemp products and extracts with a tetrahydrocannabinol (THC) concentration of not more than 0.3 percent, and redefined it as an agricultural commodity. Indiana, therefore, could not criminalize the manufacture or possession of smokeable hemp. The district court agreed and granted the injunction.

In July 2020, the U.S. Court of Appeals for the Seventh Circuit overturned the injunction. The Court ruled that the Farm Bill permits states to regulate the production of hemp and does not limit a state’s right to prohibit the cultivation or production of industrial hemp. It further stated that federal law expressly permits states to enact regulations “more stringent” than the federal rules. 

However, the Court also found that the 2018 Farm Bill’s provision concerning interstate transportation pre-empted the prohibiting the possession of smokeable. In other words, Indiana could not enact laws criminalizing the interstate transportation of smokeable hemp. It ruled that the hemp grower’s proposed injunction was too broad and should be narrowly tailored to address transit of smokeable hemp through state and ancillary restrictions on the possession and delivery of smokeable hemp to the extent that those provisions interfered with transit.

The Court ordered the case back to the district court to address these issues.

Indiana’s Attorney General Curtis Hill noted that the state was pleased that the Court had upheld the state’s right to criminalizing smokeable hemp. Indiana had argued that if smokeable hemp became legal in Indiana, it would make enforcing Indiana’s prohibition of marijuana more difficult because the two share a similar odor and physical characteristics.

Despite these similarities, hemp has significantly lower concentrations of THC, the psychoactive substance in marijuana that makes a consumer feel high.

If you or someone you love is facing criminal charges for possession of smokeable hemp, contact the criminal defense lawyers of Razumich & Associates today.

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