If Hemp Is Illegal In Idaho, How Are All Those Products For Sale In Stores?

By Katy Moeller
The Idaho Statesman

WWR Article Summary (tl;dr) There are several gaps in Idaho state law regarding hemp. For example, it’s OK to buy and eat hemp products in Idaho, but you can’t drive it through the state — even after the 2018 farm bill removed it from the list of controlled substances and legalized commercial production.


Hemp protein powder.
Hemp seeds.
Hemp oil.

Those are available on the shelves of the Boise Co-op, and it’s not hard to find hemp-containing products at other stores around the Treasure Valley.

“All of these products we’ve had forever,” said Glenny Morgan, purchasing manager for the Wellness Department at the Co-op. “They’re not new, and they’re not controversial.”

Maybe not, but the legality of hemp in Idaho is convoluted.

Prosecutors have told the Statesman that even if the cargo in an Oregon semitrailer in late January by Idaho State Police turns out to be hemp and not marijuana — as the owners of the cargo say a judge found in a ruling denying the truck’s release — it’s still a violation of state drug laws. The driver is facing a felony drug trafficking charge.

So it’s OK to buy and eat hemp products in Idaho, but you can’t drive it through the state — even after the 2018 farm bill removed it from the list of controlled substances and legalized commercial production?

“I think we have a lot of gaps in our law, and we have gaps in our understanding,” said state Sen. Abby Lee, R-Fruitland, one of the sponsors of a bill that would legalize research and cultivation of hemp in Idaho.

She said she believes hemp has great potential as a regulated agricultural crop. It’s long been used in clothing, plastics, paper, construction materials and fuel.

What the law actually says
The word “hemp” does not appear in Idaho law, but it is prohibited because it falls under the same plant classification as marijuana, the genus cannabis. Marijuana and hemp both contain a psychoactive chemical called tetrahydrocannabinol, or THC, though the amount in hemp is so low that it doesn’t give those who smoke or eat it a high.

Idaho law defines marijuana as “all parts of the plant of the genus cannabis, regardless of species, and whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin.”

If tests show evidence that any plant material, resin or derivative contains THC, that “shall create a presumption that such material is marijuana.” So anything that tests positive for THC is marijuana under Idaho law.

Possession of more than 3 ounces of marijuana, including the extract or any preparation of cannabis, is a felony crime with a penalty of five years in prison and/or up to $10,000 fine.

So how can there be legal hemp products on the shelves of Idaho stores?

Hemp extracts, oils and derivatives are legal if they meet two criteria, according to an informal opinion by Deputy Attorney General John C. McKinney sent to the administrator for the Idaho Office of Drug Policy in 2015:

1. They do not contain any THC.
2. They are excluded from the state’s legal definition of marijuana.

To not be deemed “marijuana” under state law, hemp products must be derived from one of five specific parts of the plant: the mature stalks, fiber from the stalks, oil or cake made from the seeds or achene of the plant, or any other compound, manufacture, salt, derivative, mixture or preparation of the mature stalks or the sterilized seed of the plant which is incapable of germination, the AG’s 2015 opinion says.

Buyer and seller beware
Morgan said the Boise Co-op’s hemp products don’t contain any THC and are all legal. So is it safe to assume that hemp products sold around the state are legal as well?

The short answer: No.

“While the labels might state that they do contain no THC, that may not in fact be the case,” said Tim Marsano, a spokesman for Idaho State Police. “Sometimes on the labels, it will say ‘no THC.’ You have to do a scientific analysis to determine if that’s, in fact, the case. Conversely, products available in other states say they do contain THC. They may not, in fact, contain the amount of THC stated on the label.”

The Idaho Office of Drug Policy does not do any compliance checks on hemp products. Local law enforcement agencies do enforcement, said Melinda Smyser, administrator of the drug policy office.

Compliance checks are driven by tips to police, Marsano said.

“Idaho State Police does not do blanket testing,” he said. “A retailer is subject to the possibility of being investigated if we determine that they’re selling an item containing THC, no matter what the item is.”

After the farm bill passed in December, the Food and Drug Administration put out a press release clarifying its role as regulator of products containing cannabis and cannabis-derived products.

“In view of the proliferation of products containing cannabis or cannabis-derived substances, the FDA will advance new steps to better define our public health obligations in this area,” the release said. “We’ll also continue to closely scrutinize products that could pose risks to consumers. Where we believe consumers are being put at risk, the FDA will warn consumers and take enforcement actions.”

The agency noted in the release that some foods are derived from parts of the hemp plant that don’t contain THC or CBD, and they have been deemed safe. Three hemp parts that can be legally marketed in food are hulled hemp seeds, hemp seed protein and and hemp seed oil.

CBD and hemp
Consumers are increasingly seeking out hemp products because they have heard about a variety of possible benefits, such as heart-healthy omega-3 fatty acids.

“As a dietitian, I never thought that cannabis would be a topic within my wheelhouse,” Christy Brissette wrote in The Washington Post last April. “But more clients are asking about it, and, before looking into it, I wasn’t clear on when it’s considered a food, drug or medicine — or even legal or illegal.”

Rep. Mat Erpelding, Idaho’s House Democratic leader, told the Statesman that hemp is part of his diet.
“My wife and I use hemp parts in smoothies,” Erpelding said. “It’s essentially just a protein, a complete protein like a nut. It’s from the seed. You can’t taste it.”

Morgan said Boise Co-op customers really want the store to carry CBD, which is a component of marijuana and hemp called cannabidiol.

CBD is “devoid of psychoactive activity” and does not produce “euphoria or intoxication,” the Idaho Office of Drug Policy says on its website. It hasn’t been found to be addictive or cause any other health issues, according to a 27-page report on CBD by the World Health Organization in 2017.

But CBD products do sometimes contain THC.

It’s uncommon, but people who use CBD oil can fail drug tests. The president of a lab that does testing said about 10 percent of people who use CBD test positive for THC, according to an article in Forbes last year.

Some medical professionals warn that although CBD is being touted by some as a cure-all for everything from chronic pain to anxiety, there aren’t studies to support those claims. The FDA prohibits sellers from making unsubstantiated claims.

“There’s a lot of hype about everything about CBD,” Dr. Orrin Devinsky, the director of the NYU Langone Comprehensive Epilepsy Center, told The New York Times. “There is certainly data that it has a variety of anti-inflammatory effects, but whether that translates into improving human health is unknown. Does it help people with eczema, rheumatoid arthritis or ulcerative colitis? We don’t know. There is a good theoretical basis, but the studies have not been done.”

The FDA approved the drug Epidiolex, which contains CBD, for the treatment of epilepsy. Devinsky led the Epidiolex studies and told the Times that the drug’s impact on patients was “not miraculous.”

CBD shops open around state, but not in Garden City
Some CBD oil products contain trace amounts or more of THC. The farm bill legalized hemp plants containing less than .3 percent THC, much less less than marijuana, so CBD made from hemp — not marijuana — is legal in many states.

But not Idaho.

Pocatello police obtained a sample of CBD oil that was being sold at a local business last year and had it tested at the Idaho state crime lab — and it was found to contain THC, according to the Idaho State Journal.

Business owner Katrina Evans was not charged, and she has since resumed selling CBD oil. She told the State Journal that she bought hemp chocolate milk and seeds from WinCo, and hemp oil from Walmart.

“If they can sell, why can’t we?” she said. “Why am I being singled out?”

CBD shops opened in Sandpoint and Idaho Falls last year.

A Garden City entrepreneur was held up in opening his shop due to skepticism by city officials that CBD oil can be totally THC-free, the Statesman reported last year. The city decided it wouldn’t grant permits to the business until it could be sure that its oils did not contain illegal substances.

That never happened.

“The reason we never issued a permit is because the applicant never verified the product contained no THC,” Mayor John Evans said Thursday. “The bottom line for us was that I wasn’t willing to violate state law by permitting something that had THC in it. We offered to test the product.”

Twin Falls Prosecutor Grant Loebs said the biggest market is for the CBD oil.

“All these other things [products] are very minor concerns,” he said. “We do pay attention. There are things on store shelves that look like they’re probably not legal — those are things that they will buy and test. If we found it had THC, we would take it off the shelves.”

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