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Hemp or Marijuana?

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Back in November of last year, I wrote about hemp and CBD laws here. I have been teaching quite a bit on the subject lately and wanted to follow up that post with an examination of how legal use of hemp products may affect marijuana prosecutions in North Carolina.

The state of hemp. As I outlined in the prior post, hemp products are legal under state and federal law. This is apparent to anyone that visits a hemp store, where you can purchase everything from CBD-infused gummy bears, lotions, or drinks, to hemp flowers, also known as “buds” of the plant. Hemp flowers are indistinguishable from marijuana flowers—they look the same, smell the same, and apparently taste the same. Just like dried marijuana flowers, the dried hemp buds can be smoked, vaped, or eaten. Ingesting legal hemp (in whatever form) does not cause a user to become impaired but does provide a dose of the popular compound cannabidiol, abbreviated CBD. Many hemp stores also sell paraphernalia used to smoke it, like rolling papers and pipes.

Can you tell hemp from marijuana? Not very easily. No field test exists of which I’m aware, and traditional chemical analysis of cannabis typically only looks for the presence of THC, which is present in both marijuana and hemp. To distinguish hemp from marijuana, a chemical analysis that provides quantified levels of THC must be done. From what I understand, this is not a common test, and neither the State Crime lab nor most local crime labs perform this type of testing.

The North Carolina Department of Agriculture, however, tests the dried product from hemp plants to assure it is within the legal limit for THC levels (up to 0.3%), via private labs. Two local companies are here and here. From talking with retailers, it’s my understanding that they would not accept a hemp product without documentation that it has been subject to such testing and is found to be within the lawful limit.

So, it appears that while testing to distinguish hemp from marijuana exists, the state law enforcement lab infrastructure is not currently equipped to do so, and officers on the ground can’t tell the difference, at least not before the product can be seized and analyzed in a lab capable of performing this kind of testing. Which brings us to the next point . . .

How should law enforcement treat suspected marijuana? If hemp is legal, and it looks and smells exactly the same as illegal marijuana, and there isn’t an easy way to distinguish it outside of a lab, what are officers to do? A recent memo submitted by the State Bureau of Investigation (“SBI”) to the General Assembly describes the problem. The memo was submitted in response to Senate Bill 315, pending this session, which if passed would clarify that the possession of all hemp products is legal. While the SBI memo discussed concerns if SB 315 passes, it seems fairly clear that these concerns exist under current law. To quote from the memo:

Hemp and marijuana look the same and have the same odor, both burned and unburned. This makes it impossible for law enforcement to use the appearance of marijuana to develop probable cause for an arrest, seizure of an item, or probable cause for a search warrant. In order for law enforcement to seize and analyze an item, the officer must have probable cause that the item being seized is evidence of a crime. The proposed legislation makes possession of hemp legal in any form. Therefore, in the future when law enforcement encounters plant material that looks and smells like marijuana, he/she will no longer have probable cause to seize and analyze the item because the probable cause to believe it is evidence of crime will no longer exist since the item could be legal hemp. . . The inability for law enforcement to distinguish between hemp and marijuana is problematic in all marijuana prosecutions, from small amounts to trafficking amounts of plant material. Memorandum from the North Carolina State Bureau of Investigation, Industrial Hemp/CBD Issues at 2.

The memo goes on to note that police K-9’s cannot tell the difference and that the same problem occurs with respect to paraphernalia.

Odor Plus? As the memo above lays out, without a field test or some other way to verify whether something is hemp or marijuana, officers do not have probable cause to seize it or to arrest someone in possession of it without some other reason to believe the substance is contraband. There might be times when law enforcement can develop probable cause based in part on the odor or appearance of the substance if they have other evidence that the substance is marijuana—in other words, they have observations “plus.” For example, they might observe other signs of marijuana impairment, or a suspect might admit the substance is marijuana. But if the contraband nature of marijuana is no longer immediately apparent because of its similarity to hemp, officers may lack probable cause to search, seize, or arrest based on the odor or appearance alone.

What about Fletcher? Existing state case law has allowed marijuana to be identified by visual inspection of an officer. In State v. Fletcher, 92 N.C. App. 50 (1988), the court held that the officer’s visual identification of marijuana provided a sufficient basis for conviction of a marijuana offense. Fletcher may be on shaky ground because of the visual and olfactory similarity between lawful hemp and unlawful marijuana. An officer might still try to identify plant material as marijuana based on her training and experience, but most will have to acknowledge that they cannot distinguish between marijuana flowers and hemp flowers. Again, a specific chemical analysis is the only way to distinguish the two.

We’ve seen in other drug cases that the defendant’s admission can be sufficient evidence of the identity of a substance (see, e.g., State v. Bridges, ___ N.C. App. ___, 810 S.E.2d 365 (Feb. 6, 2018) (summarized here)), so the same may hold true in this context. But where the defendant contests the issue of whether the product is hemp or marijuana, the State will have difficulty proving identity of the substance without a chemical analysis.

I didn’t know it wasn’t lawful hemp. Drug possession in North Carolina requires that the defendant knowingly possess the drugs—that she knew what she had was an illegal controlled substance. Under State v. Perez, 55 N.C. App. 92 (1981), if the defendant presents evidence that she didn’t know what she had was an illegal drug, the State must produce some evidence of the defendant’s knowledge. So, even assuming police can lawfully seize the substance, charge the person with possession, and prove at trial that the substance is actually marijuana, the defendant might then testify at trial that she thought she had lawful hemp and not marijuana. Often, the prosecution would rely on circumstantial evidence to show that the person knew she was using illegal drugs—the presence of money, drug paraphernalia, scales, ledgers, etc., all might be used in a normal drug case to establish guilty knowledge. I’m not so sure those are as persuasive in this context—again, the same paraphernalia is used to ingest hemp as marijuana, and one engaged in the business of selling hemp flowers may look like someone involved in the marijuana trade. So what would indicate knowledge of marijuana versus hemp? Again, a specific chemical test may be necessary absent an admission by the defendant or signs of marijuana impairment.

What about drug tests? It isn’t just a problem for law enforcement. In my earlier blog post, I advised that people using hemp products should beware for several reasons—the lack of standardized quality control in the production of hemp, the different standards for the content of hemp in other states, the possibility of THC accumulation in the body over time, causing trace amounts in hemp to cause a user to test positive for THC. For these reasons, anyone working in a position where he or she is drug tested takes a risk by regularly using a hemp product. The same caveat applies for someone on probation or post-release supervision.

I have continued to hear stories from employees about THC positive drug screens despite only using hemp. I have heard from employers trying to figure out how to determine if an employee’s positive result could have been the result of CBD or hemp products. The employment implications of hemp laws are beyond the scope of a criminal law post, but I will note that an employer might incur liability for firing an employee based only on a THC positive result: a statute in North Carolina protects the “Lawful Use of Lawful Products.” See G.S. 95-28.2.

How might defenders use this information in court? To effectively make these points in court, an expert witness is likely needed. An expert could explain the similarities and differences among hemp and marijuana products, and that information might be used in a suppression motion or to contest a drug identification at trial. In addition to an expert witness, defenders may consider filing a pretrial motion under Rule 702 for a determination of the soundness of an officer’s opinion that something is marijuana when that opinion is based only on odor or appearance. Another option might be to ask the court to take judicial notice of the laws authorizing hemp and modifying the definition of marijuana (and perhaps, the availability of hemp products in the state too). A special jury instruction on the hemp and marijuana issue might be sought. The SBI memo itself could be introduced by someone with knowledge of its contents or possibly under the public records or residual exceptions to the hearsay prohibition.

Where are we headed with this? That’s hard to say. The General Assembly may weigh in on this situation one way or the other. I noted in the first CBD post that a bill was pending in the legislature to decriminalize possession of marijuana under certain amounts (among other steps). I mentioned SB 315 above, which would clarify that all forms of hemp are legal to possess (although, again, that seems already to be the current state of affairs). The SBI memo proposes changes to the hemp and marijuana laws, such as outlawing the “bud” variety of hemp, outlawing paraphernalia to smoke hemp, and immunizing officers from civil liability for seizing hemp and hemp products. Hemp farmers, retailers, and consumers might have different suggestions. According to the SBI, the number of licenses to grow hemp in North Carolina increased from 348 in 2018 to over 500 in 2019, with hemp being grown on more than 4500 acres of land and in over 1.6 million feet of greenhouse space. Hemp is big business both in the state and across the nation, with an expected market value of around $10.6 billion per year by 2025. I don’t know for sure, but my anecdotal sense is that most farmers in NC are growing the “bud” variety of hemp—just look around at how many stores are selling hemp flowers and related products. If the prices for CBD products are any indication, it’s a lucrative endeavor, and the industry may resist regulations like those proposed by the SBI. One thing or the other may have to go—either we regulate hemp (at least in the flower form) out of existence or we further loosen the criminal regulation of at least small amounts of marijuana. If you have other thoughts on solving this puzzle, share your thoughts in the comments below.

Thanks to Mecklenburg County Assistant Public Defender Belal Elrahal and IDS Forensic Resource Counsel Sarah Olson for their help with some of these issues.

27 comments on “Hemp or Marijuana?

  1. What about those on probation, where testing positive for THC could violate the terms of their supervision.

    • Randal,

      I’m in the same boat.

      What state you bouts?

      I’ve found an answer….

      • They don’t test for THC anymore. I would ask my probation agent to be sure. I’m pretty sure in 2019 they don’t test for it AT ALL. I went to my probation agent, who drug tested me, and said “no THC testing” I was like “YES!”. This was 1st of the year.

        • Just say it North Carolina! All you people can put down your prescriptions (I had 11 of them) and pick up cannibus. This is so odd the prohibition office should be screaming this stuff out. It’s been a half a year since they told me “no THC”.

  2. The reefer madness effort has finally seen the future and had to admit failure. After nearly a century of insane prohibition we are beginning to see the light at the end of the tunnel. The only sensible solution is to decrim personal use amounts of all cannabis with THC above .3 and put an end to the charade of ” protecting the public ” from the demon weed by caging its’ users. They had a good run; millions of lives ruined by convictions, wages lost, benefits denied, educations forsaken, billions of dollars pumped into the police state machine and all with a straight face claiming to be protecting us from ourselves…and all without a shred of proof of harm or science based reasons for the ban. It really makes them look petty and twisted to even think about even more prohibition tactics to try and stop the tsunami from beaching; making buds illegal or pipes contraband shows the desperation of the anti-cannabis schemers. Putting a bullet in the head of at least one of the drug war hydra’s many lying mouths will at least help to right a historical wrong. It is high time.

  3. Excellent article, touches on a lot of good points. Thanks.

  4. It is harder for the police to develop probable cause to arrest people for suspected marijuana law violations because it is difficult to tell whether those people are using illegal marijuana or legal hemp. That difficulty is a good thing, not a puzzle to be solved. It is a step in the right direction. Most people recognize that marijuana use should not be criminalized in the first place, that it would be better to fully repeal the laws criminalizing marijuana. One day we’ll get there. Law enforcement’s easy solution to the puzzle: do not arrest if you do not have probable cause. No problem.

  5. § 90-87(16) excludes “industrial hemp as defined in G.S. 106-568.51, when the industrial hemp is produced and used in compliance with rules issued by the North Carolina Industrial Hemp Commission” from the definition of marijuana. 106-568.51(7) authorizes possession of industrial hemp by a grower licensed by the commission. 106-568.51(6) defines hemp products as, “All products made from industrial hemp, including, but not limited to, cloth, cordage, fiber, food, fuel, paint, paper, particleboard, plastics, seed, seed meal and seed oil for consumption, and verified propagules for cultivation if the seeds originate from industrial hemp varieties.” Unless you are a licensed grower, you can only possess products made from the NC Hemp Pilot Program or a product made from something not controlled like the mature stalk. Many of these “products” found at stores across NC, even if they are complying with the THC threshold, are not produced from the NC Hemp Pilot Program and are currently illegal.

    Unfortunately, SB 315 is further opening up the flood gates and is essentially creating a de facto legalization of marijuana. I don’t believe the General Assembly has any intentions to do this and in fact are probably being somewhat deceived on the issue. It appears there is some scientific validity to the health benefits of CBD; however the law needs to be updated to allow for law enforcement to enforce the law properly and fairly. The DEA is currently working with private companies to develop technology that will allow for field tests to distinguish between hemp and marijuana. Unfortunately, many governing bodies, including North Carolina, have put prosecutors and law enforcement in a very difficult situation. They have rushed to legalize these products without providing a practical regulatory framework.

    The North Carolina General Assembly should respond by limiting possession of hemp in plant form to a licensed grower, licensed processor, or licensed transporter. All retailers should have a license subject to warrantless search and testing. Hemp products that can be possessed by the consumer should be specifically defined and limited to products coming from NC certified hemp that contains a certification from the state. Any hemp products lacking this certification would be illegal to sell or possess. The General Assembly should exclude from the definition of hemp products, hemp in plant form and anything that resembles marijuana bud.

    There is a lot of misinformation and confusion associated with hemp products particularly CBD. Senate Bill 315, if passed as written, might as well be renamed Amendment 64. Speaking of Colorado, their Supreme Court recently ruled that a person has a reasonable expectation of privacy in the commission of federal crime. Police now need probable cause before they can use a K-9 trained to smell the odor of marijuana.

    • Legal hemp products grown anywhere in the US under the Farm bill are legal for interstate commerce (and processing and retail sale in NC).

  6. Good post Brett. And CO, just made magic mushrooms legal.

    • I was judged to be *incompetent* by the state of North Carolina (divorce) , for smoking marijuana, l had a stroke, 11 prescriptions. I’ve lived in 5 states, all of them have marijuana as being legal. marijuana is illegal here in North Carolina. I made 140k for work, retired now – I’m just 50.

    • The city of Denver did recently pass a resolution to make possession of psilocybin mushrooms a low law enforcement priority. It did not legalize mushrooms, and applies only to Denver, not Colorado at large.

      • Right. Look at Colorado population wise, look at Denver county (I lived there)it’s like most of the state but a population explosion. It apples only to Denver for now. I guess we can make up our own minds is it Denver against Washington? Or Colorado against Washington?

    • Decriminalized, not legal.

  7. https://www.usatoday.com/story/sports/nfl/2019/05/22/nfl-research-agreement-could-open-door-marijuana-pain-management/3765309002/

    Marijuana and the NFL. What does this do to the Charlotte, NC, Panthers? Hockey is done, marijuana wise (check the laws). Only MLB and Basketball remain.

  8. https://www.indystar.com/story/news/2019/02/18/cbd-flower-legal-yes-indiana-but-still-could-cause-trouble/2881461002/
    Interesting perspective on the probable cause conundrum. It is from Indiana, but basically the same problem. The police and a former prosecutor give the opinion that probable cause is still present.

  9. The THC limit needs raised to 1%. Even grain varieties, like Finola, can hit over 0.3% depending on the growing & testing methods.

    Powdered drugs look and often smell like any number of legal powdered products. There are many illegal powdered drugs without field tests that can identify them. That is no reason to outlaw headache powders and salt.

    That said, legalize all Cannabis. This situation is dumb and Cannabis is not a threa .

  10. https://apple.news/AJrHrClX8OUa9usBnYINB3g

    Is North Carolina even listening? This is what I went thru, except I only had 11 prescriptions instead of 30. I had a stroke on 3/2016, 25 days in the hospital. Retired. And this is what I’ve got to get thru to get to my kids. Common North Carolina!

  11. Phil,

    A client brought me his CBD packet today along with his certificate showing the thc content. What do you feel would be the stance on the 1000th of thc in the CBD. According to his paperwork the sample had .32% THC. If we use basic rounding. He is not in violation but upon strict reading of the bill he is since the lab test broke it down to the 1/1000th.

    • Is this not the current NC law? I see 0.32% as legal.

      GENERAL ASSEMBLY OF NORTH CAROLINASESSION 2015SESSION LAW 2016-93HOUSE BILL 992*H992-v-6*AN ACT TO MODIFY THEINDUSTRIAL HEMP RESEARCH PROGRAM BY CLARIFYING THE DEFINITION OF RESEARCH PURPOSES AND THE RESPONSIBILITIES OF LICENSEES, CREATING CIVIL AND CRIMINAL PENALTIES FOR VIOLATIONS OF THE INDUSTRIAL HEMP PROGRAM, ANDGRANTING RULE-MAKING AUTHORITY TO THE INDUSTRIAL HEMP COMMISSION.The General Assembly of North Carolina enacts:SECTION 1.G.S.106-568.51 reads as rewritten:”§ 106-568.51. Definitions.The following definitions apply in this Article:(1)Certified seed. –Industrial hemp seed that has been certified as having a delta-9 tetrahydrocannabinol concentration less than that adopted by federal law in the Controlled Substances Act, 21 U.S.C. § 801 et seq.(2)Commercial use. –The use of industrial hemp as a raw ingredient inthe production of hemp products.(3)Commission. –The North Carolina Industrial Hemp Commission created by this Article.(4)Department. –The North Carolina Department of Agriculture.(5)Grower. –Any person licensed to grow industrial hemp by the Commission pursuant to this Article.(6)Hemp products. –All products made from industrial hemp, including, but not limited to, cloth, cordage, fiber, food, fuel, paint, paper, particleboard, plastics, seed, seed meal and seed oil for consumption, and certified seed for cultivation if the seeds originate from industrial hemp varieties.(7)Industrial hemp. –All parts and varieties of the plant Cannabis sativa (L.), cultivated or possessed by a grower licensed by the Commission, whether growing or not, that contain a delta-9 tetrahydrocannabinol concentration of not more than three-tenths of one percent (0.3%) on a dry weight basis.(7a)Industrial hemp research program. –The research program established pursuant to G.S.106-568.53(1).(7b)State land grant university. –North Carolina State University and North Carolina A&T State University.(8)Tetrahydrocannabinol or THC. –The natural or synthetic equivalents of the substances contained in the plant, or in the resinous extractives of, cannabis, or any synthetic substances, compounds, salts, or derivatives of the plant or chemicals and their isomers with similar chemical structure and pharmacological activity.”

      • .32% would more than .3%

        • The NCIHC rounds 0.399% to 0.3%
          I doubt the lab test is that discriminating but it is the current information I have as a licensed grower.

  12. I had read the SBI memo but this is the Proposed Committee Substitute for Senate Bill 315 – it includes a $250,000 bond to handle hemp & Smokeable hemp being a Class 1 misdemeanor.

    https://dashboard.ncleg.net/api/Services/BillSummary/2019/S315-SMTQ-10(CSTQ-5)-v-13

  13. https://www.wral.com/law-enforcement-fears-nc-s-effort-to-boost-hemp-industry-could-essentially-legalize-marijuana/18421082/

    It’s better than alcohol. CO made $245m on marijuana tax last year, compared to $45m on alcohol tax. Most important, 90,000 people will die in the next year from alcohol and none from cannibus.

  14. […] Headache.  In a series of posts, Phil has been keeping blog readers up to date on the complicated issues involved in marijuana […]

  15. What if hemp flower becomes illegal for the general public to posses. Does this transfer the liability of protecting the crop of tens of thousands of mature hemp plants to the farmer? Just asking?

    It seems we may be creating a bigger problem than the random chance of confusing hemp for marijuana. Say someone gets stopped and they have purchased hemp flower at the local store. Wouldn’t packaging, sales receipt and a statement that it’s hemp be enough to satisfy a reasonable determination that the plant material is hemp and not marijuana? How does that take away the power of law enforcement to conduct a warrantless search? Do the search and make a determination. Reasonable people using the benefit of the hemp plant are surely open to cooperation with public safety officers. Yes?

  16. If you are caught with it opened even though it is hemp I say you should still get arrested and put in jail because they can’t tell the difference you’re dumb enough to open it up and make it look like you’re smoking weed in your vehicle you deserve what you get

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