Idaho moves toward legalizing industrial hemp

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After last year’s Farm Bill made it legal nationwide, Idaho is taking steps to legalize growing and shipping of non-psychoactive cannabis products such as industrial hemp and CBD oil.

Growing and shipping such products is now legal nationwide if they have below a 0.3 percent tetrahydrocannabinol (THC) by dry weight. But current Idaho law forbids products if they contain any THC whatsoever, which now conflicts with federal law.

“We have three choices,” Rep. Caroline Troy, R-Genesee, told the Idaho Legislature’s House Agriculture Committee at a non-voting hearing on the bill, held Feb. 18.

First, the state could do nothing, in which case courts would determine interstate commerce in Idaho. The state could pass the CBD portion only, but then the U.S. Department of Agriculture would regulate the growing of hemp in Idaho. The only way for Idaho to control the process would be for it to comply with the federal Farm Bill, Troy said.

Before the 2018 Farm Bill, hemp — which can be used for a wide variety of products, including building material — was legal to grow experimentally. In 2018, 78,176 acres of hemp were grown — 22,000 of which were in Montana and 21,578 in Colorado, according to Erica McBride Stark, executive director of the National Hemp Association, a Washington, D.C.-based nonprofit, citing figures from the Vote Hemp advocacy group.

Idaho is one of just three states that still outlaws industrial hemp, along with Nebraska and South Dakota. On Feb. 18, the South Dakota House of Representatives passed a bill to legalize the growing of hemp in the state. Nebraska is also considering a bill.

Cannabidiol, or CBD oil, is used for a number of medical conditions, including epilepsy. Several attempts have been made to legalize it over the years.

While a number of members of the Idaho government would like the state to have the opportunity to take advantage of a potentially lucrative new crop, some, including Gov. Brad Little, are concerned about how law enforcement would be able to tell whether a particular crop or truckload is hemp or marijuana. Dogs typically used to detect marijuana can’t distinguish between them.

This isn’t just a theoretical concern. On Jan. 24, a truckload of material that the owners said was hemp was stopped crossing Idaho and seized by the Idaho State Police. The company shipping the product, Big Sky Scientific, is now suing Idaho State Police and Ada County because it contends the Farm Bill made it legal to ship the product across Idaho. The Ada County Prosecutor’s Office told the IBR it wasn’t able to comment on the case because it is under litigation.

Other states typically address the issue in two ways, Stark said.

“The need to report the GPS locations of all permitted hemp fields and mandatory THC testing are the two primary ways states ensure that hemp is cultivated and not marijuana,” she said. “I have also seen fields posted with signage stating the permit number and language stating it is hemp and not marijuana, as a way of informing the public.”

In addition, some companies are developing on-the-spot testing mechanisms for THC, such as Spokane-based Sage Analytics, said Rep. Dorothy Moon, R-Stanley, who is cosponsoring the bill. Fields that test over the limit are destroyed, she said. On the other hand, in addition to being legal to grow, the Farm Bill declaration also means that hemp is eligible for federally backed farm assistance programs such as crop insurance and farm loans.

Some individuals who testified at the hearing said Idaho might have a window of just a couple of years to get in on the hemp bandwagon. Hari Heath of Benewah County, representing Inland Hemp Solutions, testified that by investing $2,000 on seeds, a farmer could make $35,000 an acre on legal cannabis products.

“It’s supposed to be a $22 billion market by 2022,” he said. “Other states will be taking that windfall.”