Hemp legalization under the 2018 Farm Bill unleashed unexpected markets for the crop. One unexpected market: people are consuming hemp the way they often consume its higher THC cannabis cousin—by smoking it.

The Farm Bill defines hemp as cannabis with a THC content that doesn’t exceed 0.3 percent. With THC levels this low, smokers aren’t getting high on hemp. Some are using it as a tobacco alternative, while others are seeking the CBD, a compound marketed for therapeutic effects, like reducing anxiety—although scientific research has yet to conclusively back this claim. Farmers are excited about pre-rolled hemp because it doesn’t require a processor between them and the consumer, for example, as a CBD oil would. Also, hemp flower fetches a good price, compared to common crops like corn or wheat. 

The challenge for state regulators, lawmakers, and law enforcement, however, is that hemp pre-rolls look like joints.

The landscape of states with laws allowing and outlawing smokable hemp looks like a checkerboard. Some states are giving the market the okay. In February, Virginia lawmakers affirmed that it’s legal for people aged twenty-one and up to smoke hemp. A bill in Tennessee last year only bans the sale of smokable hemp to minors. And in Arkansas, local entrepreneurs have found a loophole to meet consumer demand: while the state does not allow local hemp growers to sell flower directly to retailers or customers—they must sell to processors who turn who can turn it into products like CBD oil—retailers are selling out-of-state smokable hemp products. State Rep. David Hillman, R-Almyra, who sponsored Arkansas’s hemp legalization bill, told the Arkansas Democrat-Gazette it wasn’t his intention to cut Arkansas farmers out of this market. Hillman plans to fix this in the 2021 session.

Meanwhile, other states are not as open to the idea. Texas’s 2019 law allowing hemp production bans the manufacturing of smokable hemp. Louisiana bans the sale of hemp “for inhalation” and Kentucky doesn’t allow the sale of hemp in cigarette or cigar form (A bill in the Kentucky General Assembly this year to remove this ban failed to get any traction before the session ended). The South Carolina Attorney General said in an opinion last year that he’ll leave it up to law enforcement to determine if hemp flower is considered unprocessed and thus illegal to sell. Some retailers in the state decided to err on the side of caution and remove raw hemp from their shelves in the wake of the opinion. A bill in the South Carolina House would have removed the ban on the sale of raw or unprocessed hemp. The General Assembly adjourned on May 12 after a COVID-19 related break, but could be back for a special session in the fall.

In the midwest, Kansas lawmakers have said no to products like hemp cigarettes and cigars. Iowa lawmakers were considering a similar ban before they paused the session in March because of the pandemic.

In North Carolina, lawmakers have broad support from law enforcement to ban smokable hemp products. The reason: the difficulty in distinguishing between hemp and the kind of cannabis that gets you high. “As long as smokable hemp is legal in NC, marijuana enforcement is crippled in North Carolina, effectively de facto legalizing marijuana,” David Hess, president of the North Carolina Association of Chiefs of Police, told Cannabis Wire in an email. The North Carolina General Assembly was delayed because of coronavirus, potentially pushing back a ban on smokable hemp.

A ban could be a blow to hemp farmers in the state. Jonathan Miller, general counsel for the US Hemp Roundtable, says the struggle taking shape is interesting, considering the state’s long history with another smokable plant—tobacco. “A lot of hemp farmers are former tobacco farmers. They really want access to this easy market.”

Miller thinks states eventually will side with the growers. “I believe that the law enforcement concerns are a bit overblown and that we are on the verge of having technology that will allow for the distinction in the field to empower police officers to be able to tell the difference,” he said. “But until that happens, this is going to be a battle.”

To date, there is no quick, cost-effective test for law enforcement to differentiate between low and higher THC cannabis on the spot. Officers often rely on drug-sniffing dogs and field tests, neither of which can tell the difference.

But perhaps the most consequential case for the future of smokable hemp is playing out in Indiana. Last year, lawmakers banned smokable hemp products, but were immediately sued by hemp and CBD companies. A federal judge sided with the industry and put the ban on hold. 

Indiana lawmakers share the same concerns as lawmakers and law enforcement in other states—that allowing hemp flower will make it impossible for officers to distinguish between it and illegal forms of cannabis. In her decision, US District Court Judge Sarah Evans Barker pushed back on that argument: “The fact that local law enforcement may need to adjust tactics and training in response to changes in federal law is not a sufficient basis for enacting unconstitutional legislation.” Barker ultimately kept the ban on hold because it interfered with the right to interstate transport of hemp flower, in violation of the Commerce Clause of the Constitution. 

Justin Swanson is president of the Midwest Hemp Council, one of the plaintiffs in the case, and also an attorney representing the plaintiffs. He says Indiana lawmakers are attempting to carve out smokable hemp from the crop’s definition in the Farm Bill. “The question is, do states have the authority to change the definition of hemp?” Swanson told Cannabis Wire. 

Swanson says the ban has created uncertainty for a lot of Indiana hemp farmers, who have backed away from selling the unprocessed flower. That’s affected their bottom lines. Hemp biomass—including the stalks and leaves of the plant—is typically sold to a processor for about $10 per pound. Swanson says farmers can fetch $200 to $400 per pound for the raw flower, depending on the quality.

Swanson prefers the term “craft hemp flower” for the smokable product—an attempt to further legitimize the product. Some Indiana lawmakers tried to do the same during this year’s legislative session. One bill would have changed references in state law from “hemp flower” to “craft hemp flower.” But pushback also continued against smokable hemp. Another bill sought to rectify the original smokable hemp ban, clarifying that it did not apply to interstate commerce, in order to circumvent Judge Barker’s order. Neither passed before the session adjourned on March 12.

“Look, we’ve taken a ton of arrows politically for doing this,” Swanson says of the Indiana hemp industry. “It’s a calculated risk, but somebody at some point has to stick up for the industry and say, ‘This is a new day.’ The federal law has deemed this an agricultural product, and it’s time that law enforcement begins working with the industry rather than against it.”

Indiana lawmakers may not have saved the ban during the session, but the state has another shot at reviving it in court. Indiana has appealed Barker’s decision and the case went before the Seventh Circuit Court of Appeals for oral arguments on April 14 in Chicago. The court has not yet released a decision.