The Agriculture Improvement Act of 2018 (“2018 Farm Bill”) legalized hemp by removing hemp and its derivatives from the definition of marijuana under the Controlled Substances Act (“CSA”). The 2018 Farm Bill also provided a detailed framework for the production of hemp and directed the U.S. Department of Agriculture (“USDA”) to promulgate regulations and permitted states to maintain primary regulatory authority over hemp cultivated with their border by submitting a plan to the USDA.
In 2019, Indiana passed Senate Enrolled Act 516 (“Act 516”) to bring Indiana’s definition of hemp in line with the 2018 Farm Bill and to establish a regulatory framework for hemp production. Act 516 criminalized the possession of “smokable hemp,” which it defines as which it defines as any industrial hemp product “in a form that allows THC to be introduced into the human body by inhalation of smoke.” Ind. Code § 35-48-1- 26.6. The law provides that “[a] person who knowingly or intentionally manufactures, finances the manufacture of, delivers, finances the delivery of, or possesses smokable hemp … commits dealing in smokable hemp, a Class A misdemeanor.” Ind. Code § 35-48-4-10.1.
In short, Act 516 made it a crime to manufacture, deliver, or possess