Kedrick Wills

Col. Kedrick Wills, director of the Idaho State Police, shown at the Idaho State Capitol on March 1, 2019.

BOISE — The Idaho State Police currently has no way to tell hemp from marijuana, ISP Director Col. Kedrick Wills said recently, but it could soon under an emergency appropriation approved by lawmakers moments later on a 17-2 vote.

The $240,000 supplemental appropriation from the state general fund, approved by the Legislature’s Joint Finance-Appropriations Committee, would allow ISP to purchase at least three machines that can measure the level of THC in a product, within the current budget year.

“Right now we can’t do it at all, period,” Wills told the Idaho Press shortly before the JFAC vote on the funding. “We don’t have the equipment or the technology to be able to quantify THC.”

That’s an issue because the state seized a truckload of more than 6,700 pounds hemp bound from Oregon to Colorado, both states where industrial hemp is legal, and charged the truck driver with marijuana trafficking, which carries a five-year mandatory minimum prison sentence in Idaho. Testing at an Idaho port of entry determined THC was present, but not the amount. The state is now being sued in federal court over the matter.

Hemp remains illegal in Idaho, though it’s legal in nearly all other states, including all of Idaho’s neighbors. Industrial hemp has less than a 0.3 percent concentration of THC, the psychoactive ingredient that’s much higher in marijuana; it can’t get someone high, unlike its higher-THC cousin.

Legislation to legalize industrial hemp in Idaho was introduced and received enthusiastic support at a Feb. 18 House committee hearing, but has not yet come up for a committee vote; the bill has 37 legislative co-sponsors, more than a third of the entire Legislature.

Some JFAC members remained uneasy about the emergency appropriation to purchase hemp-testing equipment. “My question is why are we testing if it’s not legal in Idaho anyway, whether it be hemp or whether it be marijuana?” asked Sen. C. Scott Grow, R-Eagle. “Why are we testing the difference? Somebody help me understand that.”

Sen. Abby Lee, R-Fruitland, said, “This is about interstate commerce. Hemp is a unique product that the federal government has now moved off the Schedule 1 drug classification. So it is no longer prohibited federally. … It creates issues on interstate commerce. So as other states’ folks are moving products through Idaho, we want to be able to determine, if we have suspicions, is that a load of hemp or is that a load of marijuana? Currently our testing in the lab only allows us to determine up or down, does it have any THC or does it not.”

She added, “It seemed to be an emergency.”

Lee said, “I just wanted to point out that hemp is not legal in Idaho, and this is not an attempt to legalize hemp in Idaho. This really is response to the federal government.”

Idaho sent the samples of hemp from the truckload it seized to an accredited lab in Kentucky for testing, creating long delays. “We have an immediate need that has been thrust upon us and we’re just trying to give ISP the tools to enforce what has been our no-marijuana policy,” Lee said, “and also get ahead of … this interstate commerce issue.”

The federal lawsuit charges that because the latest Farm Bill passed by Congress and signed into law by President Trump removed hemp from the list of controlled substances, making it legal nationwide, that Idaho is violating the U.S. Constitution’s commerce clause by impeding shipments of a lawful product from one state to another.

The state has taken the position in the lawsuit that that doesn’t apply until rules are promulgated.

Wills, asked by JFAC to comment, said, “The issue really here is that the federal government has stated that commerce is going to occur. Now, the rules are not promulgated.”

“We cannot tell the difference because we cannot quantify the amount of THC,” Wills told the lawmakers. “From our standpoint, it really puts us up against a situation, where if those rules are promulgated, (there will be) interstate commerce issues. Once those rules are promulgated, we are going to be faced with this issue.”

Rep. Paul Amador, R-Coeur d’Alene, said, “Talking about interstate commerce, under current state law, can you transport hemp through the state of Idaho, even with the changes at the federal level? Do we treat it any differently, with marijuana and hemp, if we found that they’re transporting it through the state?”

Wills responded, “Currently hemp or any other substance that contains THC is illegal in Idaho. … Now if the federal government promulgates rules that allow transportation through our state, that could change that. But right now, as of today, you are correct.”

Rep. Scott Syme, R-Caldwell, who made the motion to approve the funds, said the three machines the ISP would purchase would be placed at the main points of entry into the state, “where hemp would be going in and going out.” The motion allows ISP the flexibility to revert all or part of the money to general fund if it finds a cheaper way to accomplish the testing.

Syme told the Idaho Press, “I think there was a realization that we needed to get ahead of the game here.”

The supplemental appropriation was approved on a 17-2 vote, with just Rep. Wendy Horman, R-Idaho Falls, and Sen. Jim Woodward, R-Sagle, dissenting. It still needs approval from the full House and Senate and the governor’s signature to become law, but budget bills rarely change once they’re set by the joint committee.

Betsy Z. Russell is the Boise bureau chief and state capitol reporter for the Idaho Press and Adams Publishing Group. Follow her on Twitter at @BetsyZRussell.