Why Are Hemp Companies Still Using UPS?

Do you ever feel like no one is listening? Have you ever advised someone not to do something, only to find out they did it anyway? Were you then asked by that same someone to assist with the problem that arose because they didn’t take your advice? In many ways, this is a typical lawyer’s lament – clients who don’t take advice and then need help getting out of a jam they wouldn’t be in if they had simply followed the attorney’s counsel.

I’m feeling a little fed up today, so I decided to write a blog about it. I’m tired of telling clients not to use UPS and/or other private carriers to ship hemp flower, only to be asked to help with the seizure that results because they didn’t follow my advice.

PART II – WHY SHIPPING WITH USPS IS A BETTER SHIPPING OPTION THAN A PRIVATE CARRIER

This isn’t a new problem. I’ve been advising clients to ship hemp via the United States Post Office (USPS) for years. (See this article and this article from June 2019, this article from October 2019, and this article from December 2023.) I also discuss this issue in every consultation I conduct with clients that ship hemp products. Despite this, I routinely get urgent calls from clients who need my assistance with a hemp flower shipment sent via UPS or some other private carrier that gets seized. I should note that this is not an issue reserved for “THCa hemp” since most legal hemp flower, including “CBD buds”, will test positive for marijuana under the outdated probable cause protocols and testing methods currently used by law enforcement. (I’ve been writing about this issue since 2018, several years before “THCa hemp” became popular. For examples, see here, here, and here.)

To be clear, UPS is a fine enough company as far as multinational corporations go and this article is not intended to impugn UPS. Rather, this article is about problems associated with using any shipper other than USPS to ship hemp flower. The issue is with the private nature of UPS and its competitors, not with their specific practices.

As I’ve discussed on many occasions, hemp flower shipped via a private carrier is not subject to the same protections as when it is shipped through USPS, a federal agency. Hemp is legal under federal law. Additionally, the 2018 Farm Bill specifically states that a state may not interfere with interstate transport of hemp. For this reason, USPS is uniquely situated to protect hemp shipments in ways that private carriers are not. For example:

– A package sent via USPS is always in federal custody and is usually not subject to intervention by the agents of any of the states through which the package is shipped.

– The mere odor of cannabis is not sufficient probable cause under federal law to open a package. This is because both hemp and marijuana are cannabis. Since the sole distinction under federal law between lawful hemp and illegal marijuana is the concentration of delta-9 THC, a colorless and odorless molecule, the smell of cannabis is not indicative of an illegal shipment. The same is not true with respect to probable cause under the laws of many states through which private carriers travel.

– Upon discovering that a package contains cannabis, UPS and other private carriers routinely deliver the package to local law enforcement in whatever city or county the package happens to be in when it is opened. Often, this means that the sheriff of a small rural county gets possession of what he or she immediately deems to be an illegal marijuana shipment. Charges are often filed and obtaining release of the shipment is virtually impossible. (More on this below.)

– When USPS detains a shipment there is a mostly straightforward process for seeking return of the shipment and criminal charges are rarely filed. On the other hand, when a shipment is identified as “cannabis” by a private carrier, it is usually delivered to local law enforcement and there is no orderly process for its return. (More on this below.)

In short, the protections offered by the USPS are significant compared with private carriers. To be clear, the USPS is not perfect, and legal shipments occasionally get detained by USPS, too. But compared with private shippers, USPS is the clear choice for minimizing the risk of losing a shipment of legal hemp flower.

I will now describe a hypothetical, but typical, seizure case to illustrate my point. This hypothetical is based on my dealings with many real-world hemp seizures. In this hypothetical case, the client shipped hemp flower via UPS because the client went through the UPS process of being “pre-approved” or “vetted” (or whatever term is used at the client’s local UPS office) to get on a list of approved shippers of hemp products. Most UPS offices do not offer this service, but apparently it is offered in Oregon. Clients feel secure when they are part of the UPS pre-approval process. For the reasons I am about to discuss, this is a false sense of security.

At some point during the shipment, a UPS worker notices the odor of cannabis and notifies a manager. The manager either opens the box (which UPS can do without probable cause) or calls law enforcement. If the manager opens the box and sees cannabis flower, the box is delivered to local law enforcement. If the manager calls law enforcement, then an officer will come out, notice the smell of cannabis, and use that as a pretext to open the box.

Sometimes, the officer will bring along a K9 “drug dog”, which will invariably “positively hit” on the package. This is because K9s “hit” on the odor of cannabis (i.e., the terpenes), and not on the cannabinoids, which are odorless. For this reason, any shipment containing lawful hemp will generate a “positive hit” from a K9. Despite the fact that a drug dog will hit equally on legal hemp and illegal marijuana, this positive hit will be used by law enforcement to claim there was probable cause to open the package or to obtain a warrant to do so.

Once the shipment is opened, the law enforcement officer will usually use a mobile test kit on a sample of the hemp flower. Invariably, the mobile test kit (also called a “field test”) will show a “positive” finding for marijuana. Mobile test kits for marijuana and other illegal drugs were mostly discredited for not meeting the “scientific admissibility standard” even before hemp was legalized. The problem is exacerbated due to the fact that most, and possibly all, of them decarboxylate the THCa in a sample, thus converting it to delta-9 THC. In a very literal sense, most mobile test kits create illegal marijuana from legal hemp by creating the molecule that they are measuring. Regardless, this test result will be used by law enforcement to bolster its position that probable cause exists that the shipment contains illegal marijuana.

At this point, the shipment is almost always gone for good. This is for three reasons.

First, in most states a prosecutor can retain evidence of a crime for use in trial. Some states have specific legal procedures for getting evidence released, but these procedures impose a difficult burden to overcome. The laws of most states are designed to favor prosecutors when it comes to seizing and retaining evidence of an alleged crime. This is the case even when the evidence at issue isn’t alleged to be a controlled substance.

Second, law enforcement will send a larger sample of the shipment to the state crime lab to test it. No release of the shipment will be allowed pending that test, which can take months. Additionally, most crime labs decarboxylate the THCa in a hemp sample. For the reasons discussed above with respect to field tests, you can almost guarantee that a crime lab will find that a hemp sample is illegal marijuana. The fact that the lab creates marijuana from hemp is beside the point, as this is an issue for trial, which may not occur for months (or years). (Or maybe not at all if no charges are filed. More on this, below.) Law enforcement now has “proof” that the shipment is illegal marijuana and will stonewall any attempts to get it returned.

Third, even when there is a formal legal procedure to request return of evidence, the hemp shipper will almost always lose. This is because the prosecutor will show the court its “proof” (i.e., K9 hit, field test, and crime lab test) that the shipment is illegal marijuana, a schedule 1 controlled substance. Since a law enforcement officer cannot under most circumstances release a schedule 1 controlled substance to an individual (or company), the court will usually deny the request to return the seized shipment.

Finally, this situation leaves the typical hemp shipper in a “Catch-22” situation. On the one hand, it is not often that these types of shipments result in criminal charges. This is primarily due to the fact that the shipper is often in another state. Aside from the complexities associated with prosecuting an out of state individual under these circumstances, the legal standard for proving that the shipper committed a crime is much higher than the standard for simply detaining and not returning the hemp shipment. In these situations, the client is usually frustrated at the loss of the shipment but relieved at not having to face criminal charges. However, since there is no criminal trial, there is usually no good legal mechanism for getting the shipment returned. (Remember, according to law enforcement, the shipment is illegal marijuana that cannot be returned.)

On the other hand, if criminal charges are pressed, then there is a clear path for the shipper to have her proverbial “day in court” to attack probable cause and the laboratory test results to seek return of the shipment. However, this comes at the price of defending against felony charges for distributing a schedule 1 controlled substance and risks the possibility of jail time. Notably, even if criminal charges are not pressed, I have seen law enforcement make threats to file charges when a shipper is aggressive in its attempts to recover a seized hemp flower shipment.

In other words, it is easier to get a seized hemp shipment returned when charges are filed since there is a direct legal path and a guaranteed “day in court”, but no one wants to face criminal charges.

There are variations on this theme, the most notable being when a shipper contracts with a small private carrier, rather than UPS, FedEx, or DHL. There are some very good small private carriers who specialize in shipping hemp and I’ve written about using them in an article you can read by clicking here. The problem is that these shippers often contract with third party drivers who know little about hemp and who are often careless. I’ve dealt with many seizures that resulted when a driver was pulled over for speeding, for violating some other traffic law, or even for having a “dirty vehicle”. Recently, a client’s shipment was detained in the wake of a driver being pulled over for speeding. The highway patrol officer found marijuana products (i.e., products purchased from a dispensary in an adult-use state) and a pipe with marijuana residue. The driver of the shipment was speeding and smoking marijuana while transporting a load of hemp flower. The driver also drove, against explicit instructions, through a state that is notorious for pulling over white Sprinter vans and prosecuting drivers that carry loads of hemp. The client had no control over this situation, but its hemp shipment is currently detained and retrieving it will be difficult at best.

For the reasons discussed above, lawyers are not usually able to retrieve seized hemp shipments when their clients use a private carrier. Even on the rare occasions when lawyers’ attempts are successful, the process usually takes so long that the hemp flower has degraded and is not marketable by the time it is returned.

Finally, and at the expense of making this article even longer, I want to raise the issue of insurance. Most of my clients insure their hemp shipments against loss. This is a smart thing to do with any valuable shipment. The problem is that when hemp flower shipments are seized due to the fact that law enforcement contends that they are illegal marijuana, insurers rarely pay. Most insurance contracts exclude coverage for shipments of illegal substances. Insurers will rely on the law enforcement reports and deny claims based on the shipment being “illegal marijuana”. A shipper can sue, of course, but this is a difficult and time-consuming process.

There is no way to guarantee that a hemp shipment will not be seized. This is due to the current state of the law, the vast lack of understanding that most law enforcement has when it comes to hemp and cannabis generally, and the long history of marijuana prohibition and enforcement. There are several things a hemp shipper can do to minimize the likelihood of a seizure. You can read about them by clicking here. One of the most significant things a hemp company can do is to ship using USPS and refrain from using UPS and/or other private carriers. I’m so fed up with clients not heeding this advice that I’m considering a blanket rule that my firm will no longer provide assistance with hemp seizures when the client has used UPS, FedEx, or DHL. While this may seem extreme, I don’t know how else to get this message across.

ATTORNEY ROD KIGHT REPRESENTS CANNABIS BUSINESSES THROUGHOUT THE WORLD.

Rod Kight is an international cannabis lawyer. He represents businesses throughout the cannabis industry. Additionally, Rod speaks at cannabis conferences, drafts and presents legislation to foreign governments, is regularly quoted on cannabis matters in the media, and is the editor of the Kight on Cannabis legal blog, which discusses legal issues affecting the cannabis industry. You can schedule a call with him by clicking here.