The Smokable Hemp Fight

Last verified: April 2026

SEA 516 and the Smokable-Hemp Ban

When Indiana built out its commercial hemp framework in SEA 516 (2019), it simultaneously criminalized smokable hemp. The relevant provisions:

• IC 35-48-4-10.1 — criminalized dealing in, manufacturing, financing, or possessing smokable hemp.
• IC 35-48-1-26.6 — defined “smokable hemp” as hemp product “in a form that allows THC to be introduced into the human body by inhalation of smoke,” including hemp bud and hemp flower.

The legislature’s rationale, framed in committee testimony from the Indiana State Police and the Indiana Prosecuting Attorneys Council: smokable hemp is visually and chemically indistinguishable from marijuana flower at roadside, complicating drug enforcement.

The Lawsuit

Indiana hemp wholesalers and retailers sued, arguing that the smokable-hemp ban was preempted by the 2018 Farm Bill’s express preemption clause, which protects interstate transportation of hemp produced in compliance with federal and state law. The plaintiffs — led by C.Y. Wholesale, Inc. — obtained a preliminary injunction from the U.S. District Court for the Southern District of Indiana barring enforcement of the smokable-hemp ban.

Indiana appealed. The case reached the Seventh Circuit Court of Appeals.

C.Y. Wholesale, Inc. v. Holcomb, 965 F.3d 541 (7th Cir. 2020)

Decided July 8, 2020, in an opinion authored by Circuit Judge Diane P. Wood, the Seventh Circuit reversed the district court’s broader injunction. Core holdings:

• The Farm Bill’s express preemption clause only protects interstate transportation of hemp.
• The clause does not bar states from criminalizing in-state manufacture, possession, or sale of smokable hemp.
• States may enact rules “more stringent” than the federal hemp framework so long as they do not interfere with interstate transit of compliant hemp.

The Farm Bill’s preemption provision protects only the right to transport hemp through a state. It does not prevent states from regulating, or even prohibiting, the in-state production, sale, or possession of hemp products such as smokable hemp.

<em>C.Y. Wholesale, Inc. v. Holcomb</em>, 965 F.3d 541 (7th Cir. 2020) (Wood, J.)

SEA 335 (2020) and the Transit Carveout

Following the Seventh Circuit ruling, Indiana enacted SEA 335 (2020) to bring the state’s law into compliance with the federal interstate-transport protection. SEA 335, codified at IC 35-48-4-10.1(c), carves out shipments “from a licensed producer in another state in continuous transit through Indiana to a licensed handler in any state.” Trucks carrying out-of-state-licensed smokable hemp through Indiana to another state-licensed handler are protected; in-state retail sale to consumers is not.

With the federal-preemption argument narrowed, the C.Y. Wholesale plaintiffs voluntarily dismissed the case in 2021.

HB 1079 (2024) — the Partial Repeal

HB 1079 (2024), sponsored by Rep. Jake Teshka, repealed the dealing-in-smokable-hemp provision while leaving the underlying ban on smokable hemp itself in place under IC 15-15-13. The bill passed the House but stalled in the Senate before being amended into other vehicles.

The result is a statute in tension with itself:

• Smokable hemp is still defined and prohibited under IC 15-15-13 (the Industrial Hemp chapter at OISC).
• The dealing-and-trafficking-style enhancement at IC 35-48-4-10.1 is partially gone.
• Hemp flower, pre-rolls, and inhalable hemp products continue to be sold openly in Indiana smoke shops, vape shops, and some convenience stores.

Enforcement Reality

Enforcement of the smokable-hemp ban is uneven and county-dependent. Indianapolis Metropolitan Police, consistent with their public posture on Delta-8 retail, are not pursuing smokable-hemp retailers. Some county prosecutors have ordered local stores to pull smokable hemp products following customer or law-enforcement complaints. Indiana State Police continue to use the statutory ban as a basis for stopping vehicles where cannabis odor is detected — an enforcement vector that does not depend on a retail prosecution.

The 2024 ISP investigation that found many Indiana hemp products exceeded the 0.3% delta-9 ceiling applies to smokable hemp as well: a hemp pre-roll that tests above 0.3% delta-9 is, definitionally, marijuana under both Indiana and federal law — and Indiana possession of any amount of marijuana remains a Class B misdemeanor.

The Smokable-Hemp Timeline

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