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Company suing Idaho State Police over seizure of 'hemp'

Is it hemp, or is it marijuana? Or does it matter if there's even a trace of THC in it? In Idaho, it does. (Courtesy Idaho State Police)

A federal judge in Boise heard arguments Monday from attorneys for a Colorado-based CBD supplier suing the Idaho State Police to get back 7,000 pounds of what it says is legal industrial hemp that was seized last month by ISP at the East Boise Port of Entry during an inspection.

Big Sky Scientific is asking for a judge to allow the shipment, now seized as evidence in a controlled-substance trafficking case, to proceed on to Colorado where it can be processed.

However, attorneys for ISP say any substance containing any amount of THC, the psychoactive ingredient in marijuana, is illegal under Idaho law even if it is less than .3 percent as is usually the case with hemp, a cannabis cousin of marijuana, which is used in a variety of products.

But Elijah Watkins, representing Big Sky Scientific, says under the 2018 Farm Bill, hemp is an agricultural product no different than potatoes or soybeans

"When a state government wants to protect their citizens from a prohibited product under state law, they can do that," Watkins said. "But if that product is legal on a national level, they can't prohibit it from going through from one state to another in interstate commerce."

Watkins cited the 21st Amendment, which repealed Prohibition.

And while that amendment gave states the right to ban alcohol possession in their state, states themselves cannot prohibit interstate transport of lawful goods.

Attorneys for the state police and Ada County declined to comment.

But they argued in court the federal government has no jurisdiction in this case.

They cited what's known as the Younger Abstention, the concept that federal courts should not intervene in or interfere with state criminal cases.

Idaho doesn't have the necessary equipment to test for THC levels so samples of the confiscated product have been sent to Kentucky.

Results could take weeks.

But Judge Ronald Bush could decide by mid-week just what to do with the three and a half tons of product Big Sky wants to process.

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