Hemp is now legal on a federal level, but law enforcement struggles to distinguish it from cannabis. The 2018 Farm Bill, which legalized industrial hemp with less than 0.3 percent THC, was hailed by the US hemp industry as cause for intense celebration. An agricultural staple once produced in abundance before World War II, hemp was, finally, again to be treated like any other plant.
The 2018 Farm Bill was lauded as the first step toward giving farmers the chance to make the US a hemp nation once more. “Congress clearly wanted to encourage a hemp industry. It couldn’t be more obvious,” says Frank Robison, a Denver lawyer who works with hemp companies on legal issues. “The hemp bill is clearly pro-farmer and pro-cultivation. Let’s grow it, process it, create a thriving market, and in my opinion also turn it into international commerce,” he says. “The language is clear that it wanted to create a market.”
Some unexpected problems are threatening to undermine this growth. And it all boils down to this: What is hemp, what is cannabis, and how is that determined? Since the 2018 Farm Bill’s implementation, neither the Federal Drug Administration nor the Department of Agriculture have produced national rules and regulations for hemp. And because most hemp is now being transported by trucks and trailers passing between states, each with different rules and knowledge about the legality of hemp, it’s causing any number of hassles.
In January, a trailer carrying 7,000 pounds of hemp was seized and the driver arrested by the Idaho State Police. A truckful of hemp was apprehended in South Dakota and the driver charged with cannabis possession in August. A company whose shipment of hemp was seized by Oklahoma police, who claimed it was marijuana, are suing the police, the county, and an attorney to get their product back.
Police and district attorneys in several states are complaining they don’t have the equipment or knowledge to make the distinction, either. In Florida, the State Attorney’s Office has ruled that the sight or smell of marijuana can no longer be used as probable cause for search because they both smell skanky. Charges against University of Nebraska football players for possession were dropped because the state couldn’t prove whether what they had was cannabis or hemp. In Texas, the Austin district attorney said her office would stop prosecuting possession cases involving four ounces or less unless there was a lab test, and Houston’s DA dismissed 32 felony marijuana cases, estimating that it would cost $185,000 and take up to a year to implement the testing procedure and hire people to run it.
In a sign of the significance of the problem, the US Drug Enforcement Administration put out a request for information on private companies that might have the technology for field tests sensitive enough to distinguish between hemp and marijuana. The USDA’s William Richmond said in August that the agency is grappling with the Farm Bill‘s requirement for a national THC testing protocol. “We need to have testing procedures in place,” he said, but coming up with reliable testing methods is “as complicated as you think it is.”
Is It Really That Tough?
Not everybody feels it’s that difficult. Cannabis, or marijuana, and hemp are the same plant species, Cannabis sativa. Though similar in appearance and odor, they are distinctly different in composition and the chemicals they produce. The national standard written into the 2018 Farm Bill for determining whether a crop is hemp or cannabis is that hemp must contain no more than 0.3 percent of the chemical delta-9-tetrahydrocannabinol (THC) on a dry-weight basis.
“And that’s just a very random, arbitrary number,” says Cindy Orser, chief scientific officer at Digipath, an independent cannabis testing lab in Las Vegas. “And you know, it’s just not right to define a plant species based on a chemical that can fluctuate based on its growing environment and by its genetics.”
Hemp has been grown forever for its fiber and seed for use in a wide variety of products. “When people say hemp, they usually mean industrial hemp, which is also called European hemp,” she explains. “It’s been bred for centuries for its fiber content, and it has very low cannabinoid content.”
Orser notes that there is also another hemp, what she calls American hemp, or resin hemp, which is grown for its higher CBD content. “It’s not being grown for fiber, it’s not being grown for its flower,” she says. “It’s being grown for oil, from either seeds or clones that have a good chance of coming in above that 0.3 percent delta-9 THC percent limit at maturity.”
Three-tenths of One Percent
In 1937, hemp and cannabis were both essentially demonized and taxed out of existence. There is reason to believe that other industries—cotton, building—were behind the hemp ban, but at least one was because of law-enforcement difficulties distinguishing between hemp and cannabis. With both illegal, there was no need to differentiate between the two, and no attempt was made. The number 0.3 percent delta-9 THC (3/10 of 1 percent) on a dry weight basis comes from a 1976 study of cannabis taxonomy and was never intended as a legal distinction, Orser says.
While there are several different forms of THC, only one, delta-9 THC, gets you “high.” The 0.3 percent legal limit only applies to delta-9 THC. By law, this is the sole cannabinoid that is considered when determining whether a cannabis plant is lawful hemp or unlawful marijuana.
The issue is that gas chromatography (GC), a primary testing method used by both law enforcement agencies and state departments of agriculture, heats up a cannabis sample in order to tease out and measure delta-9 THC levels. THCa, another of more than 100 chemicals produced by the plant which is not mentioned in the statute, converts to delta-9 THC when heated. “In other words, the GC testing method actually creates the very same cannabinoid that is being tested,” says Asheville, NC, cannabis attorney Rod Kight.
Here’s what Project CBD says about the number. “The 0.3 percent THC legal limit is an arbitrary, impractical, euphoria-phobic relic of reefer madness. Although it lacks a scientific basis, it has become the latest lynchpin of cannabis prohibition, a dishonest, anachronistic policy that impedes medical discovery and blocks patient access to valuable therapeutic options, including herbal extracts with various combinations of CBD and THC.”
A Possible Solution
Farmers are uncertain, too, and for good reason. If any portion of a hemp crop comes up at 0.4 percent delta-9 THC or higher at harvest time, that entire crop would have to be destroyed. Orser is trying to empirically determine a representative value for THC that would enable farmers and not confuse law enforcement. She has done testing on American hemp and has found that more than half of the plant samples of CBD resin hemp, turn up “hot,” or above the 0.3 percent number. Digipath is currently beta-testing a molecular or DNA-based assay that distinguishes industrial hemp from resin hemp and drug-type cannabis within two hours.
Growing hemp for CBD is difficult enough, Kight says, and limiting the strains a farmer can use places an undue and unnecessary burden. “Aside from legal considerations, the reason that this issue is important is because widespread adoption of the total THC position would be harmful to the hemp industry—in particular hemp farmers,” Kight says. “Requiring total THC concentrations to remain within 0.3 percent, rather than just limiting delta-9 THC, severely limits the hemp strains a farmer can grow.”
Although the gas chromotography test is the most widely used, Kight and others argue that another test—high performance liquid chromatography (HPLC)—does not use heat to separate and measure delta-9 THC concentrations, which means it’s testing the actual amount of delta-9 THC in any sample.
The HPLC test doesn’t create higher concentrations of the same molecule that determines whether a plant is lawful or an illegal controlled substance. Because GC testing creates delta-9 THC, Kight says that using it to test hemp is contrary to law and can even amount to evidence tampering in the context of a criminal case.
One final thing to remember here is that we are talking about minuscule amounts of delta-9 THC. There are no concerns that a hemp crop that comes in at 0.4 percent, or 0.7 percent, or even 1.0 percent delta-9 THC, is going to be sold or used instead as recreational or medical cannabis. Most legally available cannabis begins at around 15 percent delta-9 THC and goes up from there. Nobody will ever get high using any hemp product, even if it comes in over the limit. And it’s the farmers, the ones who find out whether their crop is legal or not after it has grown to maturity, who are paying the price for such a fickle number.
“Farmers work on razor-thin margins. We should be giving them the most latitude possible and have this uniform from state to state,” says Robison
“We’re talking about such minuscule amounts. On or off the record, who cares? It doesn’t make any sense. Why not give farmers the chance?”