In 2014, the federal government defined low-tetrahydrocannabinol (THC) hemp as any part of the plant Cannabis sativa L with a Δ-9 THC concentration of 0.3% or less.1 In 2018, the Farm Bill expanded hemp to include all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers within the required THC limitation.2 A few months later, Indiana passed Enrolled Senate Act 52, legalizing low-THC hemp extract containing a maximum of 0.3% Δ-9 THC.3 Under federal and Indiana law, if the concentration of Δ-9 in a product is 0.3% or less, it is considered hemp and legal. If the concentration exceeds this amount, it is considered marijuana and remains illegal.
Less than 3 years after hemp was legalized, Indiana Attorney General Todd Rokita issued an advisory opinion indicating that low-THC hemp remains illegal in Indiana.4 Rokita unilaterally declared that low-THC hemp is a Schedule I controlled substance rather than the legal agricultural product recognized by the state and federal government.4 Because of this statement from Rokita, residents of Indiana cannot obtain hemp without fear of criminal prosecution. Nonetheless, some Indiana vendors sell low-THC (Δ-8) products to adults5 thanks to the substantial profit and tax incentives.6
About the Author
Kelli A. Boyden, JD, is a MS candidate in the University of Florida’s Pharmaceutical Outcomes and Policy program in the regulation track. She earned her JD from The John Marshall Law School (now University of Illinois Chicago) and teaches housing and predatory lending law at the DePaul University College of Law in Chicago, Illinois.
Joseph L. Fink III, JD, BSPharm, DSc (Hon), FAPhA, is emeritus professor of pharmacy law and policy and former Kentucky Pharmacists Association Professor of Leadership at the University of Kentucky College of Pharmacy in Lexington.
Indiana is surrounded by states (notably, Michigan and Illinois) that have led the way with comprehensive marijuana legislation, and Ohio has recently legalized adult recreational use.7-9 However, no one can legally possess or transport hemp obtained in these states in Indiana. Additionally, Indiana is a barrier to those transporting marijuana for sale or processing in states where these activities are legal, which some experts argue disrupted citizens’ rights under the Commerce Clause of the US Constitution.10 For example, a Michigan grower can send its produce to Illinois for processing or sale, resting assured that states along the way will not impose an irrational restriction on this legal commerce. However, that same grower cannot send their product through Indiana whatsoever.
Indiana’s position violates the 2018 Farm Bill’s prohibition on blocking the transport or shipment of hemp or hemp products.11 Additionally, Indiana’s stance as applied to the transport of marijuana purchased in states where it is legal, particularly as interpreted by the Rokita’s advisory opinion,4 likely violates the dormant Commerce Clause.10 The Commerce Clause generally prohibits states from adopting laws that unduly discriminate against interstate commerce.11 In the past, the Seventh Circuit of the US Court of Appeals ruled that an Indiana law mandating that hemp carriers passing through the state be authorized in their state of origin was too broad and a violation of the Commerce Clause.12 Presently, Indiana’s law interferes with the rights of businesses in Michigan, Illinois, and other states to legally sell cannabis to Indiana residents.
Pending litigation challenges are underway, and attorneys have attempted to enjoin prosecution of hemp-related allegations, particularly relying on the Farm Bill’s express prohibition on state interference with transporting and shipping of hemp.5 Responding to the lawsuit, Rokita has admitted he lacks authority to criminalize or decriminalize any activity.13 Indiana’s confusion continues to confound the courts, with criminal appeals questioning whether the smell of hemp can be a probable cause for a search and necessitating reversal of convictions for possession of marijuana that turned out to be legal hemp.14,15
In contrast to Indiana, other states gain significant revenue from taxes on marijuana products. Taxes are front and center in the titles of the Illinois and Michigan statutes.7,9 Illinois made approximately $445 million in marijuana sales taxes in 2022, and Michigan made $325 million.16 It is estimated that Indiana is leaving $157,009,061 on the table each year.17
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