Is SC imposing a smokable hemp blackout?

This post was written by attorney Philip Snow with the Kight on Cannabis law firm. It is part of a series on the legal status of raw hemp, sometimes referred to as “smokable hemp”. You can read more on this topic by clicking here. Please note that we are not licensed to practice law in South Carolina. This post is informational and editorial in nature and not intended to provide any legal advice. 

South Carolina Attorney General Alan Wilson issued an Opinion on July 10, 2019 (Opinion) in response to several questions posed by Mark Keel, Chief of the South Carolina Law Enforcement Division (SLED). The questions posed by SLED concerned industrial hemp as it relates to the Hemp Farming Act (Act 14 of 2019, formerly H. 3449), signed into law by Governor McMaster on March 28, 2019.

As an important bit of background, the Hemp Farming Act (Act) defines hemp as: “the plant Cannabis sativa L. and any part of that plant, including the nonsterilized seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with the federally defined THC level for hemp. Hemp shall be considered an agricultural commodity.” S.C. Code Ann. § 46-55-10(8). For ease of reference, the federally defined THC level for hemp, as outlined in the 2018 Agricultural Improvement Act (2018 Farm Bill), is: “a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.” Section 297A(1).

One of the provisions of the Act discussed in the Opinion is whether the Act makes the possession and storage of unprocessed or raw hemp plant material by certain individuals in South Carolina without a license unlawful. Specifically, S.C. Code Ann. § 46-55-20(A)(1) states that it is “unlawful for a person to cultivate, handle, or possess hemp in this State without a hemp license” issued by the South Carolina Department of Agriculture (SCDA).

The language in this provision clearly indicates that unless you are in possession of a license issued by the SCDA, you are violating state law if you possess or store unprocessed or raw hemp plant material. Additionally, the Opinion states “without such a license, unprocessed or raw plant material, including nonsterilized hemp seeds, may not be processed, cultivated or sold, or even possessed without the necessary license.”

The Opinion continues, stating: “it may be argued that, in the context of Act 14’s passage, since the handling and cultivation of hemp was criminal conduct prior to the Act, in now requiring licensure, all unlicensed activity concerning hemp, as defined, remains criminal.”

Based on the Opinion, not only would the person possessing or handling hemp without a license be subject to criminal liability, the hemp they were in possession of could be subject to seizure by law enforcement. As a result of the analysis in the Opinion, the Attorney General concludes that: “a court likely would, depending on the facts, conclude that without the necessary license, possession, cultivation, handling or processing of raw hemp plant material is contraband per se, and subject to seizure.”

And while this may seem damning on its face, the Opinion is not all doom and gloom.

Article IV of the United States Constitution provides that the Constitution and the laws made pursuant to it are the supreme law of the land. As such, the Supremacy Clause of the United States Constitution invalidates any state action that is contrary to federal law. States are given the authority to regulate more extensively than a federal statute so long as this does not frustrate the objective of the federal statute. Most importantly, states may not pass laws that exclude conduct that is included in a federal law. Put simply, if a federal law is in direct conflict with state law, the state law will be invalidated.

In this immediate instance, there is a direct conflict between the Act and the 2018 Farm Bill. The Attorney General’s Opinion seeks to clarify that any person possessing hemp without a necessary license is subject to criminal prosecution, this would include individuals transporting industrial hemp in and through South Carolina. The 2018 Farm Bill, however in Section 10114(b), provides: “No State or Indian Tribe shall prohibit the transportation or shipment of hemp or hemp products produced in accordance with subtitle G of the Agricultural Marketing Act of 1946 (as added by 10113) through the State or Indian Tribe, as applicable.”

As some of you know, the 2018 Farm Bill grants the United States Department of Agriculture exclusive control over hemp production, including the authority to approve (or deny) plans proposed by individual states under Section 297B to regulate hemp within their borders. Absent an approved plan, sole authority to regulate hemp resides with the USDA. To date the USDA has not approved any state plans. South Carolina has not submitted one for approval. As a preliminary matter, the Act will largely be unenforceable unless and until it is packaged as a “plan” under Section 297B and approved by the USDA.

Based on the above, the Hemp Farming Act, as signed into law in South Carolina directly conflicts with the 2018 Farm Bill. And while Attorney General Wilson is limited to discussing the law in front of him as passed, some of his conclusions, as they relate to the ability to possess hemp in South Carolina without a license, are in direct conflict with Federal Law. This office advocates for the rights of the hemp industry, and we are working with lawyers in South Carolina who will be challenging the South Carolina Attorney General in his conclusions.

August 7, 2019

This post was written by Kight on Cannabis attorney Philip Snow. He works closely with clients to develop compliance strategies. Kight on Cannabis is a law firm founded by attorney Rod Kight that represents legal cannabis businesses. You can contact us by clicking here.