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Jul 9, 2020
Court Ruling Allows Indiana Ban On Smokable Hemp

A federal appeals court ruling is bringing back Indiana’s ban on smokable hemp after its decision to vacate an injunction that had invalidated Indiana’s criminalization of smokable hemp. The U.S. Court of Appeals for the Seventh Circuit said the injunction was too broad and remanded the case back to the U.S. District Court for the Southern District of Indiana for further proceedings.

The Indiana General Assembly in 2019 passed Senate Enrolled Act 516, which legalized the commercial production of hemp in Indiana and set up a regulatory framework for the state’s hemp industry. The law also criminalized the possession, delivery and manufacture of smokable hemp. It said that any “person who knowingly or intentionally manufactures, finances the manufacture of, delivers, finances the delivery of, or possesses smokable hemp… commits dealing in smokable hemp, a Class A misdemeanor.”

The General Assembly amended this provision in 2020 to clarify that it does “not 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.”

A group of growers and wholesalers joined the Midwest Hemp Council in suing the state before Senate Enrolled Act 516 was to go into effect, arguing that the law’s prohibition on the possession and delivery of smokable hemp was preempted by the 2018 Farm Bill, which legalized hemp at the federal level and said states must allow all forms of industrial hemp to be transported through their jurisdictions.

The district court sided with the plaintiffs and issued the injunction.

In its ruling, however, the federal appeals court said the 2018 Farm Bill preempts Indiana law only to the extent that it prohibits the interstate transportation of hemp. The appeals court ruled that the district court was therefore wrong to invalidate portions of Indiana’s law that criminalize more than just interstate transportation.

The appeals court noted that while the 2018 Farm Bill legalizes industrial hemp on the federal level, it expressly permits states to adopt rules regarding industrial hemp production that are more stringent than the federal rules.

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