Bradley & RiskScout: Smokable Hemp Bans

Authors: Hunter Robinson, Connor Rose, Jake Fanella, Jessica Caballero

This article provides an overview of some states’ smokable hemp bans and discusses practical considerations for hemp companies and the financial institutions that serve them. This article was originally published in the Cannabis Law Journal.

Smokable Hemp Bans

Numerous states, including Iowa, Indiana, Louisiana, Kentucky, and Texas, either ban or severely restrict smokable hemp. The scope of these bans varies based on the language of the applicable statute or regulation, with important consequences for industry participants.

For example, Texas initially prohibited “the processing or manufacturing of a consumable hemp product for smoking” in a statute enacted on June 10, 2019.[2] Since the statute was silent as to whether smokable hemp could be sold or consumed, many Texas businesses imported smokable flower from other states to sell in Texas. But on July 24, 2020, the Texas Department of State Health Services promulgated a regulation that prohibits the “the retail sale of consumable hemp products for smoking.”[3] The regulation does not ban the consumption of smokable hemp, however, and thus invites Texas consumers to purchase smokable hemp from non-Texas retailers, to the detriment of Texas-based retailers (and Texas’s tax revenue).

Other states have enacted a total ban on smokable hemp. Iowa bans the production, sale, transportation, and consumption of “harvested hemp or hemp product[s]” if their “intended use … is introduction into the body … by any method of inhalation.”[4] Indiana goes further in some respects, prohibiting not only the manufacture, delivery, or possession of smokable hemp, but also the financing of such activities.[5] However, the financing ban does not apply to “financial institution[s].”[6] Nor does the ban “apply to the shipment of smokable hemp from a licensed producer in another state in continuous transit through Indiana to a licensed handler in any state.”[7]

Hemp advocates have pushed back on these bans through lobbying campaigns and litigation, but the results have been mixed thus far. The industry scored an initial victory in C.Y. Wholesale, Inc. v. Holcomb,[8] where a federal district court issued a preliminary injunction that blocked large portions of Indiana’s smokable hemp ban. The district court found the hemp-industry plaintiffs had shown a strong likelihood of success on their contention that Indiana’s ban was preempted by the 2018 Farm Bill because it put those transporting smokable hemp through Indiana at risk of criminal prosecution.[9] But this industry victory was short lived, as the Seventh Circuit[10] reversed the injunction. While the Seventh Circuit recognized the 2018 Farm Bill “unequivocally”[11] preempts any state law that interferes with the “interstate transportation of smokable hemp,” it does not preempt state laws that “prohibit the cultivation or production of industrial hemp.”[12] Since the district court enjoined the manufacture and possession of smokable hemp, the Seventh Circuit held the injunction “swept too broadly.”[13]

Soon after the Seventh Circuit issued its decision in Holcomb, the hemp industry scored a victory in Texas when a state court[14] issued a temporary restraining order that enjoins the state from enforcing its ban on the sale of smokable hemp. The temporary restraining order expires on September 2, 2020, when the court will conduct a hearing on the hemp-industry plaintiffs’ request for a preliminary injunction.

As these lawsuits show, smokable hemp bans are subject to attack on various legal grounds, and their staying power is up in the air. But while such bans are in effect, hemp companies and the financial institutions that serve the industry must learn to live with them.

Practical Considerations

Hemp Companies

Smokable hemp bans will have differing effects on and raise differing compliance concerns for hemp companies depending on the company’s geographic location, place in the supply chain, and distribution model, as well as the specific scope of the applicable bans.

For large cultivators and processors located in states that ban manufacturing smokable hemp, the best option may be relocating to a more welcoming state. Indeed, Crown Distributing LLC, the lead plaintiff in the Texas lawsuit discussed above, stated that it was considering moving to Oklahoma if Texas’s ban was not struck down, noting that the ban could cause $50 million in lost revenue over the next five years.[15]

For local retailers, a ban on the sale of smokable hemp may be an existential threat. Retailers with enough product offerings to survive without the sale of smokable hemp must ensure they are neither selling products labeled as smokable hemp nor marketing other flower products, like tea, as smokable.

Multistate operators and large single-state businesses that distribute interstate will need to understand the scope of the smokable hemp bans in states to which they distribute. These companies may need to take steps to prevent sales to customers in states that ban the consumption of smokable hemp. This may require updates to product skus and software related to inventory and sales. Further, these companies should take care when shipping smokable hemp through a state in which it is banned. While companies should always include with hemp shipments documents showing the product is hemp, not marijuana, and ensure their shipping contracts properly allocate risks of loss, this is especially so when a smokable hemp shipment goes through a state that bans possession of the product.

Financial Institutions

Navigating the complex and dynamic legal landscape of hemp has always been a challenge for financial institutions seeking to serve the industry. The patchwork of state laws regarding the legality of smokable hemp adds another layer of complexity.

Institutions must ensure their hemp customers are operating lawfully to stay in compliance with their Bank Secrecy Act/Anti-Money Laundering (“BSA/AML”) obligations. Broadly speaking, the BSA requires that a financial institution establish an effective “AML Compliance Program,”[16] comply with customer due diligence (“CDD”) and customer identification program (“CIP”) obligations,[17] report certain currency transactions, and file a “Suspicious Activity Report” (“SAR”) when it detects a “known or suspected violation of Federal law or a suspicious transaction related to a money laundering activity or a violation of the [BSA].”