The Perils of Cannabis Transport Without Legal Advisement
The commercial regulated cannabis industry, which includes both industrial hemp and marijuana, is in its infancy. As such, transportation and logistics are paramount topics. We are witnessing the real-time creation and evolution of the relevant supply chains – locally, statewide, nationally, and globally.
At the individual level, varying state and national laws across the country and world can make it difficult to understand what can and cannot be in your possession during travel. For example, the
incarceration of Brittney Griner in Russia is either an example of the country’s heavy-handed diplomatic policies or, more likely, a high-profile cautionary tale of an individual who possessed a cannabis derivative while traveling. No one really knows whether the substance Griner was caught with was a derivative of hemp or marijuana. In addition, she was traveling in a jurisdiction that does not either allow for or has no real ability to test for, the presence of unlawful cannabis compounds. We’re left asking – what exactly did Britney possess and is it in fact illegal in Russia?
In any event, at its basic level, the transport of how much cannabis an individual may or may not possess is governed at the state level under the applicable criminal/cannabis code legislative sections. Air travel for personal cannabis possession has received a great deal of scrutiny in recent years, especially considering whether the “to” location/state and the “from” location/state possess lawful cannabis programs. Yet, air travel is ultimately overseen by federal authorities who are required to enforce federal law and/or refer it to local officials.
Even in a legal state like Colorado, there can be fines attached to the possession of marijuana products at the airport.
There is tremendous confusion about hemp-derived products, such as CBD, and whether they are legal. While hemp derivatives are lawful under the 2018 Farm Bill, they are not yet regulated by the Food and Drug Administration (FDA). It is even murkier when discussing the travel treatment, and corresponding legality, surrounding Delta-8 THC, Delta-9 THC, and/or wholesale ingredient shipments which are intended to be utilized in a finished good (post-dilution), where the Delta-9 THC content tests above 0.3%.
Commercially, each state which allows for commercial regulated marijuana has established rules and requirements for the transportation of all closed-loop marijuana products. Oftentimes, this requires a travel manifest and state-system notifications in advance of transport. This also places requirements on who may transport the products and materials and places strict restrictions on the time, place, manner, and duration of this authority to transport.
In commercial marijuana states with wide-ranging geographical service areas, like Alaska, Michigan, Colorado, and California, state agencies are dealing with novel issues about air transport and its propriety and/or legality associated with Federal Aviation Administration (FAA) rules. It brings to bear a myriad of questions about small aircraft and the relevant regulation surrounding flights that do not exceed 10,000 feet in altitude.
We have also seen that many states have enacted marijuana delivery licensure. In these cases, third-party vendors can be licensed to pick up and/or deliver cannabis. California has had marijuana delivery for quite a few years at this point, and these licenses carry with them very strict protocols and standards to ensure strict compliance and public safety.
Of course, interstate commerce surrounding actual closed-loop state-legal marijuana products is strictly prohibited. However, various states have taken policy-related steps to at least explore the notion of interstate commerce surrounding marijuana. Recently,
California considered a bill that would allow interstate cannabis sales. This would further allow the governor to enter into agreements with other states that have approved the reforms and would “allow” for cross-border commerce. There are various legal and constitutional arguments as to how and why states may enter into certain compacts to facilitate interstate commerce. How viable these arguments are when applied to cannabis remains to be seen.
Regarding industrial hemp, Congress expressly enacted provisions of the 2018 Farm Bill (contained in the Agricultural Marketing Act of 1946), which specify that States and Indian tribes may not prohibit the interstate transportation or shipment of hemp lawfully produced under a State or Tribal plan or under a license issued in furtherance of Congressional authorization surrounding industrial hemp. This has, surprisingly, caused confusion and inconsistent treatment of hemp biomass and derivative shipments across the United States.
Globally, both hemp and marijuana are regularly traded internationally. What requirements does the exporting country require? What about the recipient country? Who are the shipping companies that facilitate the shipment of these products? What will the shipping company require by way of documentation? What are the chances of a product seizure?
Recently, Clark Hill dealt with substantial revisions of FedEx’s relevant international hemp shipping protocols and procedures and dealt directly with UPS with respect to its International Special Commodities (ISC) requirements.
Clark Hill lawyers have guided our clients to answers to nearly all of these questions, and the corresponding insurance requirements and products. We have created “Best Practices” guides for nearly all of the scenarios described above; as well as have developed relationships with the relevant shipping company representatives and customs officials in numerous countries. There are a million solutions to all of the foregoing challenges, and a million more scenarios that can arise when shipping cannabis materials locally, across state lines, and internationally. Good counsel is advised, accordingly.
