Why You Should Always Ship Hemp Through the USPS

[Editor’s note: Since publishing this article two weeks ago, the NY Post published a prominent story about the NYPD’s seizure of 106 pounds of hemp and the arrest of an individual on marijuana charges. According to the story, the seizure and subsequent arrest was sparked by a “tip” from FedEx, the carrier used to ship the hemp. This story is new. As of this writing, neither the seizure nor the criminal charges have been resolved. However, it underlines the point of this article. -Rod Kight]

I cannot tell you the number of times I have been contacted this year about hemp that was mailed, opened during transit, and seized by law enforcement. Every seizure represents a monetary loss to a client, including lost time, replacing the product for the customer, and legal fees associated with getting my office involved. But financial loss is not always the only problem. One of my clients is currently facing criminal charges in Utah and another is anxiously awaiting a follow-up call from a DEA agent in North Carolina. Both shipped lawful hemp.

There is one common thread in almost every seizure I’ve dealt with: the hemp was mailed through a private carrier. (Note: In this post I am discussing mailing small to medium sized packages of hemp through carriers such as UPS, FedEx, and DHL. For large shipments involving thousands of pounds of biomass and flower there are reputable logistics companies that cater to the hemp industry.) The problem with using private carriers to mail hemp is that they retain the right to open any “suspicious” packages.

Here’s the UPS position on opening packages: “We’re vigilant to look out for what may be contraband… We do not open every package. We have the right to open and inspect if we choose.”

FedEx takes a similar position: “We have the right to open any package that we deem to be suspicious.”

And DHL recently announced that it will not ship hemp products.

In cases involving seized hemp, I typically hear some variation of the following facts: an employee of the private carrier smells cannabis; this leads the carrier to believe that the package may contain illegal marijuana; the carrier opens the package; when the package contains cannabis (ie, hemp) it is turned over to local law enforcement. (In my current case involving the DEA the agent is a locally deputized task force agent.) Invariably, local law enforcement either contends that the hemp is illegal marijuana or reserves judgment until the hemp is tested. The hemp is detained and a sample is sent to a state crime lab for testing. This often results in a report from the lab that the hemp is marijuana. The reason that hemp can test positive for marijuana in these circumstances is due to a number of factors beyond the scope of this article. (To read more about problems with testing, I encourage you to click here, here, and here.) Once the hemp is deemed to be marijuana, it is not returned to the shipper. Occasionally, criminal charges are filed. The process can take months.

This scenario can usually be avoided by taking a few proactive measures.

First, I typically advise my clients to ship hemp products through the US Mail rather than a private carrier. Unlike private carriers, the US Postal Service (USPS) cannot open packages unless it has probable cause to do so. One of the unexpected effects of hemp legalization is that the mere smell of cannabis no longer constitutes probable cause to believe that the package contains illegal marijuana. This is because the only distinguishing characteristic between lawful hemp and unlawful marijuana is the concentrations of delta-9 tetrahydrocannabinol (THC), an odorless compound that can only be measured using laboratory tests. Drug dogs that “hit” on marijuana can no longer do so accurately. A package that reeks of pungent weed may very well contain legal hemp. For this reason, the USPS cannot open a package solely because it smells like cannabis. It must have some additional basis for suspicion. For example, the age-old tactic of leaving no return address, or using the same return address as the mailing address, may create probable cause if the package smells like cannabis. The argument for probable cause in this instance would be that since hemp is lawful, the only reason not to include information about the shipper is that the package contains unlawful marijuana.

Second, I recommend reading and complying with the USPS’s recent postal bulletin regarding hemp, “Publication 52 Revision: New Mailability Policy for Cannabis and Hemp-Related Products”:

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Third, I advise my clients to include some basic documents with the package. These include a cover letter, a certificate of analysis, and, whenever possible, a copy of the cultivator’s state-issued license or registration and/or the state-issued license of the processor or handler to whom the product is being sent. To be clear, none of these items are legally required; however, they will go a long way towards a swift resolution if a package is detained.

Here is an example of a generic form letter that could be used as the cover letter, provided that the mailer complies with all of the items it discusses (including retention of records):

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Here’s my legal disclaimer: This letter is provided for illustrative purposes. It is always best to consult an attorney when shipping hemp. If you choose to use this letter you do so at your own risk and there is no guarantee that your hemp will not be seized. While I am generally happy to be retained for hemp matters (that’s what my law firm does), mere use of this letter without formally retaining my law firm does not constitute an attorney-client relationship.

To be sure, it is frustrating that we are still dealing with seizures of lawful hemp almost a year after it was removed from the Controlled Substances Act and over five years after Congress legalized industrial hemp cultivated under a state pilot program. However, taking a few simple measures can greatly reduce the likelihood that your package will be seized.

October 16, 2019

Rod Kight is a cannabis attorney who represents hemp farmers and hemp businesses.  He speaks at cannabis conferences across the country, drafts and presents cannabis legislation to foreign governments, is regularly quoted on cannabis matters in the media, and maintains the Kight on Cannabis legal blog, where he discusses legal issues affecting the cannabis industry. You can contact him here.