Is Banning Smokable Hemp Unconstitutional?

Is Banning Smokable Hemp Unconstitutional?

Law enforcement agencies find distinguishing between smokeable hemp and marijuana too difficult and expensive. This has prompted campaigns in four states to have smokeable hemp flower banned, and certain lawmakers are in support. But just how constitutional would a ban on smokeable hemp be? Keep reading to find out.

What’s the Difference Between Marijuana and Hemp? 

Both marijuana and hemp are forms of the same plant – Cannabis Sativa L.. Cannabis gets classified into either hemp or marijuana based on the percentages of the intoxicating cannabinoid THC per the plant’s dry weight. Only cannabis flower with less than 0.3% THC is considered to be hemp. With THC levels this low, smoking hemp doesn’t result in the psychedelic high associated with marijuana consumption. 

Because both hemp and marijuana are both just different forms of the cannabis plant, they can look deceptively similar to the naked eye – the only way to really tell one from the other to lab test the buds for THC content. 

Is Hemp Legal, and What is the 2018 Farm Bill?

Hemp’s legal status is complicated and nuanced, but thanks to the 2018 farm bill, the plant can at least be transported safely across the county without fear of legal repercussions. The farm bill was originally created as a New Deal program designed to help struggling farmers; however, the bill expires every five years, requiring a new piece of legislation to be passed in its place. The bill’s most recent iteration federally decriminalized hemp so that the cash crop could help boost the agricultural economy. The addition was so popular it gained bipartisan support from a historically divided congress. 


So if hemp is federally decriminalized, that means it’s legal, right? Well, not exactly. When a product is decriminalized, it means that a person can no longer be criminally prosecuted for possessing it, though in some cases, fines may still be applicable. When something is completely legalized, it can be sold like any other conventional product. Take recreational marijuana in Colorado or Washington State, for example.

The Farm Bill decriminalizes hemp, but only on a federal level. Ultimately it remains up to the States to set individual laws governing the sale, cultivation, and possession of hemp. Check out our list to find out the states where smokeable hemp is legal.

What is Smokable Hemp

Some state lawmakers are attempting to differentiate hemp from smokable hemp by banning the latter. But what exactly is the difference?

Smokable hemp is exactly what it sounds like, hemp sold with the express intention of being consumed through inhalation. It can come in the form of hemp flower/hemp buds, hemp pre-rolls, and even pre-filled hemp cartridges like our Stems. A quick search of “smokeable hemp near me” will pull up a list of CBD dispensaries that have smokeable hemp available for purchase. 

So far, Indiana, Texas, Louisiana, and Kentucky have passed bills restricting the sale of smokeable hemp, with North Carolina currently wrestling with its own similar legislation.

Is Banning Smokable Hemp Constitutional?

One of the biggest impacts of the 2018 Farm Bill is the allowance for interstate hemp-related commerce to be unobstructed by individual state laws. However, bans like the one in Indiana usurp Congress’ intention by making it illegal to possess smokeable hemp – at least according to Indiana’s district court, which found the ban to be unconstitutional.

“By criminalizing the manufacture, finance, delivery, or possession of smokable hemp, which is defined under SEA 516 to specifically include hemp bud and hemp flower, the Act precludes the transportation of hemp or hemp products in or through Indiana, in direct contravention of the 2018 Farm Bill’s express prohibition on restricting the transportation of hemp and its derivatives in interstate commerce.”
Removing any questions of constitutionality, the smokeable hemp bans make little practical sense. As Justin Swanson, president of the Midwest Hemp council, put it: “The bill Indiana ended up passing was like essentially telling a cattle farmer, ‘Hey, you can sell beef, but you can’t sell steak."

Ultimately each individual states' courts will decide whether or not these bans are considered unconstitutional until it is brought to the Supreme Court. Until then, whether these bans are unconstitutional will be a topic of debate and depend on the interpretation of the 2018 Farm Bill.
What are your thoughts? Is such a ban unconstitutional? Do these bans make practical sense?