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Lack of regulations, testing options lead to hemp seizures in Evanston

EVANSTON — On March 6, Wyoming Gov. Mark Gordon signed legislation making hemp possession and production legal within the state, which was welcome news to those who view hemp as an agricultural commodity and a possible economic benefit to Wyoming. However, that enthusiasm may be blunted by the potentially long and twisted road ahead for Wyoming hemp producers and transporters.

The Wyoming Legislature took action to legalize and regulate hemp following federal passage of the Farm Bill of 2018, which was signed into law by President Trump in December. People may believe that with both the Farm Bill and the Wyoming legislation, the state is open for business when it comes to hemp. The truth, however, is not quite so cut and dried.

While the Farm Bill did legalize hemp production, it also set up stringent regulations for that production that require each state to develop plans for licensing, testing and regulation, and submit those plans to the U.S. Department of Agriculture for approval. The Wyoming legislation provided funding and authority for the state agricultural department to do just that; however, no such plan has yet been submitted to the USDA. In fact, no state has as yet had a plan approved by the USDA.

Some business owners, especially those in states that had previously legalized marijuana itself, have found themselves in sticky situations when transporting hemp across state lines in recent months. To be clear, hemp and marijuana — though derived from the same Cannabis plant family — are not the same product. The Farm Bill explicitly states that hemp must contain less than 0.3 percent THC content, which is the component of marijuana responsible for creating the user’s high.

The problem for those transporting industrial hemp across state lines is that the two products are remarkably similar. Hemp and marijuana smell and look the same, making it difficult for law enforcement officers to distinguish between the two. The only way to accurately determine if loads are hemp or marijuana is to submit samples for testing to ensure THC levels are below the permissible 0.3 percent.

A particularly newsworthy case of the problems created by these similarities occurred in Idaho in late January, when an Oregon-to-Colorado bound truck containing approximately 6,700 pounds of hemp was seized and the truck driver arrested after police detected the odor of marijuana coming from the trailer. Although multiple tests later confirmed the product was indeed hemp, Idaho has not yet passed any legislation to legalize hemp. That particular case is now working its way through the court system after the company shipping the hemp sued the State of Idaho.

A judge initially ruled in favor of the state, noting that Idaho does not distinguish between industrial hemp and marijuana; however, the company has appealed that decision and has argued it was simply shipping a legal product through interstate commerce. The Ninth Circuit Court of Appeals has agreed to hear the case.

Here in Wyoming, similar situations have occurred. Uinta County Attorney Loretta Howieson-Kallas said there have been instances since Gordon signed the bill into law in March in which vehicles hauling hemp from Oregon have been detained. She said in those instances, the loads have been released after further investigation into the “field management, testing and post harvesting in Oregon by accredited labs.”

While those hemp loads were released, the outlook is hazy for loads seized prior to March 6. Members of the Bridger Valley Hemp Association (BVHA) said they are particularly concerned about a load of hemp they said was seized in Uinta County in early February. As in the Idaho case, the vehicle in this case was bound from Oregon to Colorado.

Correspondence between the company involved in that case and Howieson-Kallas that was shared with the Herald via the BVHA, states that load is in custody of the Wyoming Division of Criminal Investigation pending the results of testing to determine if the product is marijuana or hemp, which could take up to four months to conclude.

Mandy Flint with the BVHA said waiting that long will likely result in a complete loss of that crop after being locked in a trailer for an extensive period of time. Flint said that would result in a financial loss of several hundred thousand dollars for the company and may result in a lawsuit similar to the one in Idaho.

From a legal perspective, however, the correspondence from the Uinta County Attorney’s Office points out that, even if testing confirms the product is indeed hemp, just as in the case in Idaho, it was not legally transported because in February, hemp was still illegal, according to Wyoming law.

While she said she cannot discuss specific active investigations, Howieson-Kallas said, “Each and every one of the loads that has been intercepted since Jan. 1, 2019, have had discrepancy, inaccuracy or incomplete documentation.” Paperwork problems and discrepancies are bound to happen, she said, because there simply is no standardized documentation at this time.

“I anticipate that we will continue to have detained and/or seized loads until some standardized documentation and testing is promulgated by the U.S. Department of Agriculture,” she said. “Hopefully when the U.S. DOA approves rules and regulations and, then, approves these state programs we will have standardized paperwork to expedite this process.”

In the meantime, as noted by Howieson-Kallas, it is likely hemp loads being transported across the state will continue to be held up, particularly in Evanston and Uinta County given the location on I-80 near the state line. For any loads seized prior to March 6, like the one seized in Uinta County in February, it is unclear what will occur going forward. Flint said she would like to see a sample from that load shipped to a company in Colorado for testing so that results could be obtained more quickly and inexpensively, and the product returned before becoming permanently damaged if testing confirms it is hemp.

Given the ongoing criminal investigation in that particular case, however, correspondence indicates that agricultural testing may not be sufficient.

Flint said she has had discussions with local legislators and other elected officials about the situation and there is broad agreement that Wyoming needs to develop a plan as soon as possible. In fact, the Wyoming legislation requires the state department of agriculture to submit a plan to the USDA within 30 days of becoming law, which would be April 5.

Flint said it’s still unclear how the state will deal with the testing requirement because obtaining the necessary lab testing equipment and/or constructing a new lab for that purpose could take months if not years. It is also unclear if the state would be able to contract with an out-of-state company for testing purposes in the meantime.

There is also the matter of whether testing for agricultural purposes and testing for law enforcement purposes can be done at the same facilities. Howieson-Kallas said the U.S. Drug Enforcement Administration is looking into field testing done in other countries to immediately determine THC percentages for law enforcement purposes.

Inquiries about the state of hemp in Wyoming to both the Wyoming Attorney General’s Office and to the state board of agriculture have had no response as of press time.

Although the Farm Bill legalized industrial hemp, Transport Topics, a trucking news publication, noted in a March 6 article that the American Trucking Association has cautioned truckers about transporting hemp loads “due to the confusing state of the legality of hemp.”