The 2018 Farm Bill removed “hemp” and hemp-derived products containing a THC concentration of 0.3% or less from the definition of marijuana under the federal Controlled Substances Act.  States remain free to treat such products as illicit controlled substances, but cannot prohibit interstate transportation of hemp that is produced in accordance with a plan established or approved by the US Department of Agriculture (USDA).  Unfortunately, determining whether hemp qualifies for this safe harbor is no easy feat.

The USDA has established a website identifying states seeking USDA approval or intending to adopt the USDA plan. For any state not listed by USDA, the assumption must be that hemp produced in any such state would not qualify for the federal safe harbor for interstate transportation. Finally, the USDA regulations do not specifically address what documentation a carrier should have in its possession to prove to law enforcement the hemp cargo qualifies for the safe harbor.  As such, transportation companies will need to continue to exercise caution with respect to accepting shipments of hemp and hemp-derived products.