Federal Judge Rules Indiana’s Smokeable Hemp Ban Unconstitutional

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A federal judge has ordered Indiana officials to cease enforcement of a ban on smokeable hemp products. 

U.S. District Judge Sarah Evan Barker’s ruling sided with plaintiffs including the Midwest Hemp Council and several other Indiana hemp businesses that filed a lawsuit in June. In her decision, Barker wrote that Indiana’s law banning the manufacturing, transport, possession, and delivery of smokeable hemp conflicted with federal law. Specifically, Barker cited the Agricultural Improvement Act of 2018 (farm bill) which was signed into law by President Trump in December. The farm bill removed hemp from the federal list of controlled substances. The bill also prevents states from interfering with the transport of legally produced hemp products for interstate commerce. 


Senate Bill 516 legalized hemp in Indiana but also outlawed it in smokeable form. Under the bill signed into law by Governor Eric J. Holcomb in May, possession and sale of smokeable hemp were misdemeanor crimes.

Some members of law enforcement are in favor of banning smokeable hemp because the plant is visually indistinguishable from THC cannabis. This issue already has inadvertently decriminalized cannabis in Texas as police are unable to determine legal hemp from illegal THC products. 

Judge Barker believes this is not enough of a reason to uphold a ban that is at odds with Congress. 

“The fact that local law enforcement may need to adjust tactics and training in response to changes in federal law is not a sufficient basis for enacting unconstitutional legislation,” she wrote.

However, she also said the issue could soon be resolved as state officials have already earmarked “additional funding to enable the State Police to purchase the proper THC testing equipment as well as by substantially enhancing penalties for knowingly selling marijuana that is packaged as low-THC hemp extract.”

Barker also ruled that banning smokeable hemp is in violation of Congress’ objective to allow interstate hemp commerce and that travelers could be unfairly criminalized as well.

“A driver traveling along I-74 from Ohio to Illinois who passes through Indiana with smokable hemp in the vehicle, including hemp bud or hemp flower, would be in ‘possession’ of smokable hemp and thus subject to arrest and criminal penalties under SEA 516,” Barker said. “Similarly, if a driver were transporting smokable hemp from Ohio on that same route through Indiana for delivery in Illinois, he or she would be ‘possess[ing] smokable hemp with intent to … deliver it,’ in violation of SEA 516.”