Hauling hemp can be risky for drivers even though it’s now legal to grow it, process it and sell it — which is why some states are including provisions in their hemp plans to try and ease the pain, according to the U.S. Department of Agriculture’s (USDA) top legal official.

Speaking at USDA’s annual Agricultural Outlook Forum in Washington, D.C. on Thursday, USDA general counsel Stephen Vaden said that a handful of states are requiring that drivers hauling hemp have documentation verifying that their cargo is legal.

“Currently none of the roadside tests that any state or local law enforcement officer would use can readily determine hemp from marijuana,” Vaden told FreightWaves after a panel discussion at the event.

“If you have to send it off to a lab for testing, it will take at best a few days, during which the shipment has been interdicted and the driver may be sitting there waiting for the result. That’s why some states, Texas among them, are requiring that if you transport within their jurisdiction that you have a document so that if you’re pulled over by authorities they know what it is and your problem is solved. Creative solutions like that can be a stopgap until we get testing that can quickly determine the difference between hemp and marijuana.”

Hemp, like marijuana, is a type of cannabis. Cannabis with a THC level exceeding 0.3% is considered marijuana, which remains classified as a controlled substance regulated by the U.S. Drug Enforcement Administration. However, because they look and smell alike, “we are finding often that shipments of hemp are being intercepted” by law enforcement, said Steve Silverman, deputy commissioner of the Colorado Department of Agriculture, speaking on the panel.

“If there’s a truck parked at a motel or parking lot and someone complains about the smell, they call the police, who inspect it and think it’s marijuana,” Silverman said. “So while part of the task is to create some kind of uniform documentation that transporters can embrace, we also need to [educate] law enforcement authorities across the country that there is a difference between them and one is legal. A lot of work is left to be done to clarify the transportation issues for hemp.”

Vaden pointed out during the panel discussion that a legal opinion issued by his office in May 2019 helped to resolve an issue in Idaho, where the state had seized and tried to hold on to a truckload of hemp that had been lawfully grown in Oregon and was en route to Colorado.

“Following the release of that legal opinion, the governor of Idaho issued an executive order which provided that, henceforth, the Idaho state police would no longer seize hemp lawfully produced in interstate commerce, despite the fact that production of hemp remains illegal in Idaho,” Vaden said. “We’re proud of having solved that problem, but if there are other noncompliance issues out there, let us know. We definitely want to remain active in that space.”

The 2018 Farm Bill legalized the cultivation, processing, marketing and sale of industrial hemp under specific government regulations. USDA in October issued an interim rule for its U.S. Domestic Hemp Production Program to begin setting a regulatory framework for U.S. hemp production and sale as required by the Farm Bill. A two-month comment period following the interim rule generated more than 4,600 comments.

“It’s our intention to continue to interact with the hemp industry and continue to take comments,” affirmed Greg Ibach, USDA’s under secretary for marketing and regulatory programs, speaking on the panel. Ibach said his agency also wants to gain experience from the first growing season since the 2018 Farm Bill was enacted to monitor how the rules are affecting commercial hemp producers.

“I view this as an informal comment period that’s open from now until next fall, when we plan to reopen a formal comment period and take more comments before we make the final adjustments to the [interim rule] to be able to move towards a final rule.”