A federal judge issued a preliminary injunction last week ordering Indiana to stop enforcing its law that criminalizes the possession of smokable hemp.
Judge Sarah Evans Barker of the Southern District of Indiana wrote in a Sept. 13 ruling that Indiana’s law criminalizing the manufacture, finance, delivery and possession of smokable hemp is preempted by federal law.
The Agriculture Improvement Act of 2018, signed into law by President Donald Trump on Dec. 20, 2018, removed hemp from the federal list of controlled substances and redefined the plant as an agricultural commodity. It also says states can’t pass laws that interfere with the right to transport lawfully produced hemp in interstate commerce.
By not limiting its prohibition to intrastate activity, “Indiana’s law … does just that,” Barker wrote in the ruling.
Senate Bill 516 made hemp a legal, regulated crop in Indiana, and set up the state’s regulatory structure for hemp. It includes a hemp advisory committee that will report to the Indiana state chemist and seed commissioner for a period of about two years.
The bill also made smoking the hemp flower illegal. Dealing in smokable hemp or being in possession of smokable hemp are both misdemeanors under the bill. Gov. Eric Holcomb signed the bill May 2.
The state argued that if smokable hemp is legalized in Indiana, it would make enforcing the state’s laws against marijuana more difficult. Because smokable hemp and marijuana look and smell similar, law enforcement officers are generally unable to tell the difference between them without a laboratory test of THC levels, the state argued.
Barker acknowledged in her ruling that the state may face additional challenges if possession of smokable hemp is legalized in Indiana. However, “the fact that local law enforcement may need to adjust tactics and training in response to changes in federal law is not a sufficient basis for enacting unconstitutional legislation,” Barker wrote.
Jim Decamp, who owns Owlslee CBD in Downtown Indianapolis, said he acknowledges that differentiating between marijuana and smokable hemp can make police officers’ jobs more difficult. Still, he supports Barker’s ruling.
“I don’t know the answer to that problem, but I feel like the benefits that clients get from THC-free hemp flower is something that they really want and need,” Decamp said.
The plaintiffs in the lawsuit, all but one of whom are Indiana businesses that sell hemp products, would have been subject to “irreparable harm in the form of a credible threat of criminal sanctions” without the preliminary injunction, Barker wrote in her ruling.
The preliminary injunction only affects portions of Indiana law that criminalize the manufacture, finance, delivery and possession of smokable hemp. All other provisions of Senate Bill 516 remain in effect, Barker wrote.
A spokeswoman for Holcomb said the case is under review. Republican Sen. Chip Perfect, one of the Indiana bill’s three authors, declined to comment on the ruling.
Republican Sen. Blake Doriot, an author of the Indiana bill, said in a statement Friday that he does not support hemp as a smokable product “until sufficient regulation has been determined.” He said law enforcement face difficulties in distinguishing smokable hemp from marijuana. Get the Doye
Former Republican Sen. Randy Head, did not respond to an emailed request for comment. Head, who wrote the bill amendment that criminalizes smokable hemp, is now chief deputy prosecutor at the Pulaski County Prosecutor’s Office.
IndyStar reporter Emily Hopkins contributed to this report.
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