Federal Judge Says Indiana’s Ban On Smokable Hemp Is Unconstitutional

A federal judge in Indiana ruled last week that the state’s law banning smokable forms of hemp is unconstitutional and has issued a preliminary injunction prohibiting enforcement of the statute. In a ruling issued on September 13, Judge Sarah Evans Barker of the Southern District of Indiana said that Indiana’s law prohibiting the manufacturing, financing, delivery, and possession of smokable hemp is preempted by federal law.

Barker wrote in her ruling that enforcing the law would cause “irreparable harm in the form of a credible threat of criminal sanctions” without a preliminary injunction.

The federal government legalized hemp and removed the crop and all hemp products from the nation’s list of controlled substances with the passage of the 2018 Farm Bill in December. But when Indiana passed Senate Bill 516 earlier this year to regulate hemp agriculture in the state, it included the ban on smokable forms of hemp flower.

Smokable Hemp Confusing Cops

The legalization of hemp has led to a proliferation of smokable products that are generally rich in CBD, including dried hemp flower and pre-rolled joints. But the immense popularity of the products has led some states to ban smokable forms of hemp, arguing that law enforcement cannot readily determine if a substance is hemp or marijuana.

Barker ruled that the confusion was not a legal justification for treating some forms of hemp as a controlled substance, writing that “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”

The judge also issued an immediate injunction to block enforcement of the smokable hemp provisions in Senate Bill 516, saying that the plaintiffs, all but one of whom are Indiana businesses that sell hemp products, should not have to wait to determine how much business was lost to the smokable hemp ban and file a lawsuit later.

“The likely unconstitutional portions of the statute cannot be easily measured or reliably calculated, given the novelty of the hemp industry in Indiana and the dearth of historical sales data to use as a baseline for calculating lost revenues,” Barker wrote.

Jim Decamp, the owner of Owlslee CBD in downtown Indianapolis, told local media that while he understands the concerns of law enforcement, he supports Judge Barker’s ruling.

“I don’t know the answer to that problem, but I feel like the benefits that clients get from THC-free hemp flower is something that they really want and need,” Decamp said.

Two other states, Louisiana and Texas, have also banned smokable forms of hemp and North Carolina is considering a similar measure. Tennessee has banned the sale of smokable hemp to minors.