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Is Smokable Hemp Legal in South Carolina?

Is smokable hemp legal in SC?

It doesn't get you high, it doesn't contain more than .3% THC, but you should still get the benefits of the CBD that it contains. It makes sense, for some people, to smoke it rather than take pills or eat brownies...

Hemp is now legal under federal law. It's also now legal under SC law - hemp farmers have been given the green light to grow industrial hemp, process it, and even transport it across state lines.

A recent SC Attorney General Opinion, however, has thrown what seemed like a done deal into confusion. Law enforcement, prosecutors, and store owners are unsure whether smokable hemp is legal in SC, so store owners are pulling it from their shelves for now.

Is smokable hemp legal in SC? Why wouldn't it be?

What is Smokable Hemp?

Hemp is a form of Cannabis Sativa that has a THC content of .3% or less - it won't get you high if you smoke it.

Hemp is used for all sorts of things including CBD products that reportedly help with anxiety, PTSD, opioid addiction, arthritis, epilepsy, and other medical conditions. It can also be used in construction materials, fabrics, food, and biofuels.

The hemp flower is identical to buds on a marijuana plant except for the difference in THC content - they look the same, dry the same, and smoke the same. Although most CBD products seen in SC so far have come in the form of pills or edibles, smokable hemp cuts out the process of extracting the CBD and allows you to just roll and smoke the hemp flower directly.

Like a marijuana plant, but without the THC. Which is probably why it makes law enforcement crazy...

Is Hemp Legal in SC?

Hemp is legal in SC, so why wouldn't smokable hemp be legal? The federal government has removed industrial hemp from the Controlled Substances Act, and SC has legalized the farming and production of hemp, but the SC Attorney General is telling law enforcement that smokable hemp may or may not be illegal...

The Federal 2018 Farm Bill Legalized Hemp

The federal government removed the prohibition on growing hemp in the 2018 Farm Bill, which:

  • Removed industrial hemp (with a THC content less than .3%) from the Controlled Substances Act;
  • Legalized hemp farming wherever it is legal under state or tribal law; and
  • Authorized transportation of hemp across state lines.

Previously, the 2014 Farm Bill had authorized hemp cultivation for limited research purposes while leaving it classified as a controlled substance. Federal law now permits hemp cultivation for commercial purposes wherever state law also allows it.

The SC 2019 Hemp Farming Act Legalized Hemp

Just months after the federal government passed the 2018 Farm Bill, SC passed the 2019 Hemp Farming Act, which:

  • Did away with limits on the number of permits issued;
  • Allows unlimited acreage to be farmed; and
  • Allows farmers to grow hemp without a university "research partner."

Hemp farmers must still apply for a permit and meet the requirements of the Hemp Farming Act before they can start growing.

The July 10 Attorney General Opinion on Hemp

After the passage of the SC Hemp Farming Act, SLED requested an opinion from the Attorney General's Office interpreting the statute. In their letter, they basically say, "Hey - we think it's illegal to sell hemp flower, can we arrest the store owners and purchasers?"

In the AG opinion, the Attorney General concludes:

  • It is a criminal offense for a store owner or hemp purchaser to possess hemp with a THC content greater than .3% - that would be possession of marijuana, not hemp; and
  • It is unlawful for anyone to possess unprocessed hemp without a license from the SC Department of Agriculture.

But they don't answer SLED's question, which turns on the meaning of the words "unlawful" and "unprocessed."

What Does "Unlawful" Mean?

SC Code Section 46-55-20(A)(1) says:

(A)(1) It is unlawful for a person to cultivate, handle, or process hemp in this State without a hemp license issued by the department pursuant to the state plan.

As the Attorney General Opinion points out, the word "unlawful" means "an act prohibited by law" or "without authority of law." In at least one prior Attorney General Opinion, the Attorney General has also said, "[t]he term 'unlawful' as you are well aware, is not synonymous with the term 'criminal.' Op. S.C. Att'y Gen., 1971 WL 17598 (Op. No. 3225).

The legislature is also well aware that the term "unlawful" is not synonymous with the term "criminal." Nowhere in the new legislation does it make possession of hemp with a THC content less than .3% a crime. It doesn't say it is a criminal offense, and it does not provide penalties for a new criminal offense.

Although the Attorney General is also well aware that the term "unlawful" is not synonymous with the term "criminal" (see Op. No. 3225), they advise law enforcement that, because hemp used to be illegal, the legislature must have intended for it to still be illegal, and therefore law enforcement can arrest and charge people for possession of unprocessed hemp without a license.

The Attorney General says that punishment would be determined by SC Code Section 17-25-30, which provides for sentencing when no punishment is provided by statute:

In cases of legal conviction when no punishment is provided by statute the court shall award such sentence as is conformable to the common usage and practice in this State, according to the nature of the offense, and not repugnant to the Constitution.

What's the problem with this analysis?

  • If the legislature intended for possession of hemp to be a crime, it would have made it a crime. The legislature knows the difference between "unlawful" and "criminal."
  • Why would the legislature intend for possession of hemp to remain a crime in the context of a statute decriminalizing hemp (and if they did, why wouldn't they say so)?
  • The Attorney General suggests that the legislative intent (which is unclear) should take precedence over the plain meaning of the words that the legislature chose to use. If this were the case, no one could ever have any certainty about what is a crime and what is not a crime.
  • Ambiguity in a criminal statute (or a statute the Attorney General wants to say is criminal) is resolved in favor of the defendant - Due Process requires that people be on notice that a thing is a crime before they can be arrested and charged with it.

Maybe the courts will say, "since it was illegal before it is still illegal, even though the legislature called it "unlawful" and didn't say it is a crime." In my opinion, it would be a Due Process violation and, if law enforcement tries to charge people with the "crime" of possessing hemp, any portion of the statute that could be interpreted as making it a crime to possess hemp should be held to be unconstitutionally vague at best.

Is Smokable Hemp "Unprocessed?"

The Attorney General says, in his opinion, unprocessed or raw hemp plant possessed by a person without a license is contraband and subject to seizure. That's true - unprocessed hemp possessed without a license is "unlawful" and would be considered contraband. That doesn't make it a criminal offense (see above).

But is smokable hemp sold in stores "unprocessed?" Does packaging the plant as smokable hemp for sale in stores constitute processing?

The Attorney General says, "The answer to this question is clearly 'no.'" As a side note, any time an attorney says "clearly," or "obviously," it's a red flag indicating they have a weak argument...

Code Section 46-55-10(12) defines processing as "converting an agricultural commodity into a marketable form."

Code Section 46-55-10(9) says that "[u]nprocessed or raw plant material, including nonsterilized hemp seeds, is not considered a hemp product."

Therefore, in the Attorney General's opinion, "unprocessed raw hemp cannot be changed into a "hemp product" merely by placing it into a package.

After giving his opinion that package smokable hemp is unprocessed and not a hemp product and therefore law enforcement can arrest people for possessing it, the Attorney General goes on to say that it's up to law enforcement and prosecutors to decide what "unprocessed" and "hemp product" mean.

The Attorney General may be wrong, in part, due to ignorance about how smokable hemp is processed...

Unprocessed or raw plant material is not considered a hemp product.

Processing means to convert the hemp into a "marketable form."

Unprocessed or raw hemp flower is not in a "marketable form," and therefore it is not a hemp product under the law. So how is it processed?

The flower (buds) must be harvested (cut from the larger plant). The flower must then be trimmed (extra leaves must be trimmed away from the flower before it is dried and cured). Then it must be dried and cured (it is not smokable until it is dried, and it's a harsh smoke if it isn't cured properly). Then, it is packaged for sale.

Once the hemp flower has been harvested, trimmed, dried, cured, and packaged for sale, it has been "converted into a marketable form" (processed) and is now a hemp product.

So, Is Smokable Hemp Legal in SC?

The 2019 SC Hemp Farming Act legalized hemp cultivation and processing. Industrial hemp with a THC content under .3% is no longer listed in the Controlled Substances Act.

Although it is still unlawful to possess "unprocessed hemp," without a license, and unprocessed hemp possessed without a license is likely subject to forfeiture as contraband, the legislature did not make it a criminal offense.

Even if it is a crime to possess unprocessed hemp, smokable hemp has been processed - converted into a marketable form - and is legal under SC law.

Will the courts agree? I think so, but I can't predict that with any more certainty than the Attorney General. Based on the letter from SLED and the AG Opinion, I would say law enforcement wants to arrest you for possessing or selling smokable hemp, so the safe bet is to wait for the courts to provide some clarity.

Which is why smokable hemp has been pulled from the shelves in most stores in SC...

Got Axelrod?

Your SC hemp business law attorney on the Axelrod team can help you to get your business up and running, apply for hemp permits, negotiate contracts, incorporate your business, answer questions about the quickly changing legal landscape related to hemp and hemp products, and handle all of your business' legal needs.

We are also prepared to fight any criminal charges brought against hemp growers, processors, stores, or consumers. Schedule a free consultation with a business law or drug crimes defense attorney on the Axelrod team. Call us now at (843) 916-9300 or fill out our contact form today.

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