Is smokable hemp legal in south carolina?

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 p