As law enforcement officers throughout South Carolina starting to pay closer attention to who has unprocessed hemp in their possession, the arrests they make could face legal challenges.
In 2014, the South Carolina General Assembly passed a law allowing industrial hemp to be grown by farmers selected by the state Department of Agriculture. In its third year, about 100 South Carolina farmers have been approved by the Department of Agriculture to grow industrial hemp in its pilot program. They are licensed to grow and possess the raw hemp products.
But some stores throughout the state have been selling the raw hemp, known as hemp flower, without a license to possess it.
In response to Gov. Henry McMaster’s signing of the Hemp Farming Act in March 2019, amending state agriculture laws, South Carolina Law Enforcement Division Chief Mark Keel requested an opinion from state Attorney General Alan Wilson.
“It appears that this bill makes the possession and storage of unprocessed raw hemp plant material by certain individuals in South Carolina without a license unlawful,” Keel wrote, asking for guidance on the penalties for possession of unprocessed hemp, whether unprocessed hemp is considered contraband, and several other related questions.
The Attorney General’s office released its opinion in July, saying that Keel’s letter was a correct summary of the law.
“The Hemp Farming Act has as its centerpiece the prohibition of possessing and handling hemp, as defined, without the necessary license,” the opinion states.
In response to the opinion, law enforcement agencies in South Carolina are starting to look for people possessing raw hemp without a license. In York County, businesses who had the raw hemp in their inventory without a license were given one day’s warning to get rid of it.
“We gave people warning, we released it to the media outlets,” said 16th Circuit Solicitor Kevin Brackett. “Basically, put the word out to everybody that you can’t have this anymore. So we gave them that little grace period to get it out. Now if we find it in stores, if people are still out there selling, we’re going to seize it, which we can do under the law because it’s contraband.”
Brackett said that because the hemp flower looks very similar to marijuana, law enforcement officers cannot tell the difference at the time of arrest.
“You see a baggie with what looks, smells and has the appearance of marijuana, you’re going to assume that it’s marijuana,” he said. “They’re not required to test it on the side of the road. All they’re supposed to have is probable cause, and if they see something that looks like marijuana they’re probably going to arrest you, and then if the testing comes back and shows that its hemp, you’ll still have violated the law because it’s illegal to possess that.”
Brackett said he met with York County law enforcement agencies in early August to discuss the Attorney General’s opinion because officers were getting calls about stores that were selling raw hemp.
“We decided since, apparently, it had been going on for some time, people might have thought that the fact that it had been allowed to go on might mean that it’s legal to do that,” Brackett said. “We thought it would be only fair to give people a sort of heads-up and a grace period that this is going to have to come to an end.”
The law does not apply to refined and processed hemp products such as CBD products.
“It’s just not good to have this stuff,” he said. “It looks just like marijuana. It looks identical to it. It’s being sold and bagged and packaged, and the amount that it’s being sold for is roughly the same that marijuana is being sold for.”
But Daniel Island attorney Walter F. Harris said the state law is ambiguous, and he expects legal challenges to these arrests. Harris said the law uses the term “unlawful,” which doesn’t necessarily mean “criminal” in relation to legislative intent.
“The Legislature had more than ample opportunity, when they stated that it was unlawful for a person to cultivate, handle, or process hemp in the state without a license, that they could have gone on with if you did violate it and it was unlawful, ‘here you go: this is what the law would be with respect to how to treat violators of it,’ but they didn’t,” Harris said.
The Attorney General’s opinion said that “We readily acknowledge that the Hemp Farming Act of 2019 was not drafted with the greatest of clarity and needs legislative or judicial clarification,” but it does define what is unlawful.
Harris also argued that just because hemp may still be in its plant form, that doesn’t mean it’s “unprocessed,” since there is still an extensive process involved in getting a hemp plant out of the ground and into a baggie, and he expects that arrests under this recent interpretation will be challenged on that issue as well.
“Anytime there’s ambiguity in legislation, it’s got to be challenged, and it’s got to go back to the drawing board, and it’s got to be amended, and it’s got to be debated and go back again,” Harris said. “Because I think what you’re going to have out of this is a public policy where we’re criminalizing behavior that the whole country doesn’t want to be criminal.”
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