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Is Smokable Hemp Flower Legal?

Hemp is federally legal now, so that means Smoking Hemp flower is too. Right?

Well, it depends

The 2018 farm bill federally legalized hemp, or Cannabis sativa that tests under .3 percent THC. The natural assumption would be that means smokable hemp flower, the unprocessed hemp flower, cured and smelling amazing, typically sold as either flower or pre-rolls, is legal for retailers to sell and for consumers to smoke.

Unfortunately, not every state has agreed with that interpretation and some have passed state laws banning the sale or consumption (and sometimes both) of smokable hemp products.

Smokable Hemp Doesn’t Make You High, So What’s the Problem?

The concern from lawmakers over smokable hemp is a logistical one. Simply put, police can’t tell the difference between non-intoxicating, legal smokable hemp and illegal, intoxicating, marijuana. Remember, hemp and marijuana do indeed come from the same plant.

Hemp is non-psychoactive. Marijuana varietals, however, are grown for their high levels of THC, the psychoactive cannabinoid produced in the cannabis plant. Telling them apart is the issue. And indeed, some illegal marijuana growers — and users — have capitalized on the confusion amongst police enforcement and made it harder to enforce marijuana laws. This has created unintended consequences for legal hemp growers.

Like a New York City case in November 2019 in which the NYPD seized a legal shipment of hemp flower as it arrived at a New York CBD retailer.

The Hemp Flower was shipped from a farmer in Vermont. It had all the legal and proper paperwork accompanying it. Unfortunately, the FedEx driver delivering the shipment believed it was an illegal shipment of marijuana and contacted the NYPD, who seized the shipment then arrested the business owner’s brother when he went to pick it up from the precinct. The precinct even posted pictures of the “marijuana bust” on Facebook and the instigating officer claimed he could tell that it was pot because of the “physical characteristics.”

Though the case was later dropped — hemp flower is legal in New York State, so the police had no cause to seize it — the incident highlighted the problem with police and smokable hemp flower. High-quality, highly desirable smokable hemp flower, with a strong terpenoid and (legal) cannabinoid profile, is very difficult to tell apart from illegal marijuana without a test for THC.

In states that were already strongly anti-marijuana, legislators have responded to the confusion bypassing state rules controlling or, in some cases, outright prohibiting, the sale and consumption of smokable hemp flower. It’s been a reaction of, well, if they can’t tell the difference, make it all illegal.

Which States Have Laws Against Smokable Hemp Flower

As of this writing, there are several states with laws enacting some versions of a ban against smokable hemp flower.

  • Kentucky – Not allowed to sell smokable hemp and license need for possession.
  • Virginia – Requires a license.
  • South Carolina banned sale and possession of raw hemp without a license, but the law is unclear if smokable is considered ‘raw hemp.’
  • Massachusetts – banned sale and possession of raw flower
  • South Dakota – just submitted a plan to USDA for legalizing hemp in South Dakota, but unclear if smokable hemp will be allowed.
  • Louisiana – cannot process or sell hemp for inhalation.
  • Idaho – illegal in all forms. Hemp growers can apply for a license through the UDSA.
  • Mississippi – illegal in all forms. Hemp growers can apply for a license through the USDA.
  • Texas – You can possess, but not produce smokable hemp.

In other states, the legality of smokable hemp is still debated. North Carolina proposed to ban smokable hemp but has not passed legislation to date. Meanwhile, Indiana banned smokable hemp, but then the law was challenged, and initial court rulings overturned the ban.

The bottom line? Rules and laws over smokable hemp are evolving and each state has a different approach. Make sure to contact your state agricultural department and refer to the current state hemp program for the latest information and rules on smokable hemp. The Harris-Brick “Canna Law Blog” also has an excellent, state-by-state background on hemp laws.

Can Producers Ship Smokable Hemp Across State Lines?

Shipping hemp biomass across state lines ended up putting some transporters in jail in 2019 and prompted the USDA to clarify that indeed, shipping hemp through states was legal even if that state itself didn’t have a legal hemp program.

This forced states like Idaho that had been hard-nosed on hemp production (they still do not have a legal hemp production program for the state) to reverse prior orders to seize hemp, and arrest drivers, coming through their state.

All this helps for 2020, but remember, your product still risks seizure if you are shipping smokable flower for a final destination into a state that doesn’t allow it!

Can Users Order Smokable Hemp Online if They are In a Banned State

Obviously, the laws are still murky and confusing about smokable hemp when it comes to states that have banned or licensed it.

Currently, however, users can buy smokable hemp online and ship into their state (even if it is banned) because the U.S. Postal Service has ruled that shipping hemp and all hemp products are legal.

That’s good news for smokable hemp users and prompted strong online sales of smokable hemp.

What Should Smokable Hemp Farmers, Producers and Users Do?

Yes, it’s frustrating. But keep in mind, hemp was prohibited for more than 80 years. The path toward legality hasn’t been a straight one by any means. Laws banning smokable hemp is a direct result of generations of fear-mongering and misunderstanding of the amazing hemp plant and all it can do.

While state bans on smokable hemp are frustrating, they are not surprising. The movement to legalize hemp took many and just because it was de-scheduled from the Controlled Substances Act as part of the Farm Bill of 2018, does not mean that all regions of America went along with that move. The education about hemp must continue.

For farmers, producers, and retailers, make sure to cover all your bases. Know the laws in your state and ideally speak with an attorney that is familiar with cannabis laws in your region. Talk with other farmers and sellers. Make sure you only work with reputable shippers. This is an industry where sloppy homework and cutting corners can end up causing a lot of grief.

Established hemp seed growers, including Colorado Breeders Depot, can help to answer these questions and steer you in the right direction through free consultation services. Make sure to use these services and ask lots of questions!

Finally, be proactive. The ban of smokable hemp flower comes down to fear and misinformation. Be willing to reach out to your local authorities and legislators and promote hemp for what it is, a federally legal, valuable product desired by the American consumer with massive potential for businesses and farmers. You are a legitimate business owner, farmer, or hemp user working with a federally legal product. Be proud of the American hemp industry and keep on educating!

Contact Colorado Breeders Depot for information for more information about growing smokable hemp, or to order one of our premiere smokable hemp varietals, check the Colorado Breeder’s Depot website at Or feel free to email us at or call us at (719) 275-7770.

We offer a full line of high CBD, low THC feminized hemp seeds and clones, plus a high CBG varietal. We offer free ongoing consultation and have a buy-back program for our grower’s network.