With the passage of the 2018 Farm Bill, hemp was effectively legalized in all 50 states. The bill removed hemp from the DEA’s schedule 1 narcotics list. This opened the doors for farmers across the country to plant this versatile crop.

However that didn’t necessarily clear the air for everyone in the hemp industry or law enforcement. A Minnesota driver carrying 300 pounds of hemp through South Dakota was recently stopped for speeding and arrested for possession of marijuana. The driver was bringing the hemp to a Minnesota processor from Denver, Colorado. The Argus Leader reported the driver was released and is awaiting the next steps in the legal process, but the total cost so far in legal fees and product loss exceeds $36,000.

Unlike hemp, the legal status of marijuana was not changed with the passage of the farm bill. Marijuana remains a schedule 1 narcotic and is illegal in most states. Making matters more complicated, the legal status of hemp is even still in question in a few states like South Dakota.

So while the 2018 Farm Bill federally legalized industrial hemp, South Dakota legislators did not override Gov. Kristi Noem’s veto of a bill legalizing hemp in the state this year.

The Department of Public Safety in South Dakota points out that hemp is still illegal in their state and that includes transporting it.

Meanwhile the Minnesota Hemp Association is calling out South Dakota for violating the 2018 Farm Bill. This case highlights the urgent need for consistent state laws regarding the hemp industry.

The Backstory of Hemp

Hemp and marijuana are both part of the plant species cannabis. The truth is, the term marijuana did not enter into common use in the U.S. until the 1920s and 1930s. At the time the term marijuana came into use, there wasn’t a specific marijuana plant or definition of marijuana.

There were and are three different types of cannabis species–cannabis sativa, cannabis indica, and cannabis ruderalis. These have historically been referred to blanketly as hemp.

Hemp has been a part of U.S. History since the founding of our country. Prior to the 1900s, hemp was not generally used for smoking in the US. Prior to the revolutionary war the colonies produced sacks, paper, cordage, cloth and canvas from hemp. This continued into the 1800’s. The psychoactive properties of hemp were well known by the 18th century. However, there is no evidence that colonial Americans used hemp for mind-altering purposes.

Enter Marijuana

Between 1900 and 1930, there was a large-scale migration from Mexico to the US. With them came the concept of smoking cannabis aka hemp. The first bill to be passed against the cultivation of cannabis was in 1913. Later, Harry Anslinger, in his position as Commissioner of Narcotics, leveraged the cannabis issue for professional advancement and security. He made the abolition of smoking cannabis his mission. Anslinger used the foreign-sounding term “marijuana” when campaigning against the plant and it was he who made this term a household word.

At that time and for the decades following hemp and marijuana were legally regarded as the same thing.

What is the Difference?

Up until recently, the question of the difference between hemp and marijuana was very difficult to answer. With all of the new strains of both hemp and marijuana being developed.

But today, because of the 2018 Farm Bill, the answer to the question is very straightforward. Cannabis is considered hemp if it contains less than 0.3% THC and marijuana if it contains over that amount. This is the first time that there is a stated definition of each that allows the two —hemp and marijuana —to be identified as distinct plants.

The bill defines hemp as “the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”

Why Cannabis Enforcement is a Problem

The problem with enforcing marijuana laws, is that apart from the invisible chemical makeup of hemp and marijuana, the difference in the level of THC, there are virtually no outward physical characteristics differentiating the two. In addition to that, even testing the level of THC is difficult.

It was for exactly this reason that Commissioner of Narcotics, Harry Anslinger, was able to effectively ban both hemp and marijuana in the 1930s—essentially throwing the baby out with the bathwater.

How a Few States are Coping with Cannabis Law Enforcement Issues

Texas

Texas Governor Greg Abbott signed a new law on June 10 which allows for a federally approved program for farmers to grow hemp as an industrial crop. The law also expanded the type of products that can be purchased in the state to include any hemp or hemp-derived product containing less than 0.3 percent of THC.

But marijuana is still illegal in Texas.

As a result of the new law, on July 10, all Texas Department of Public Safety (DPS) officers were instructed to cite and release people with a misdemeanor amount of the suspected drug —less than 4 ounces —when possible.

The difficulty in differentiating between hemp and marijuana has led prosecutors in some Texas jurisdictions to drop hundreds of low-level marijuana cases and stop accepting new ones.

DPS said that before the hemp law, they were arresting and booking people on marijuana possession cases in most counties. They further stated that they will continue to do that in jurisdictions where prosecutors are accepting cases without a quantitative lab report.

Ohio

This loosening up on enforcement of marijuana laws goes even further in the state of Ohio.

On July 20, Ohio Governor Mike DeWine signed SB 57 approving hemp in that state.

Subsequently, the Ohio Attorney General’s office sent a letter to every prosecutor in the state. The letter says:

“BCI (the Ohio Bureau of Criminal Investigation) is in early stages of validating methods to meet this new legal requirement. Suspend any identification of marijuana testing in your local jurisdiction by law enforcement previously trained.”

Most crime labs in Ohio only have the ability to detect the presence of THC but not the specific amount. Even the state crime lab at the Ohio Bureau of Criminal Investigation (BCI) cannot distinguish between the legal and illegal amount of THC.

A spokesperson for the Ohio Attorney General’s Office told 10TV WBNS that the passage of SB 57 effectively puts a temporary stop to any prosecution of any marijuana cases statewide. The bureau is continuing to work on getting instrumentation and procedures necessary to measure the quantity of THC, a process which is anticipated to take many months.

Florida

Meanwhile In the Sunshine State, the state legislature also recently passed SB 1020 on July 1st. The legislation legalized hemp and CBD products.

In response, in the same month, the Florida Sheriffs Association sent out a legal alert stating that law enforcement officers can no longer use the sight or smell to determine possession of marijuana. They need extra indicators like other drugs, paraphernalia or guns.

“Sheriffs should not assume that a positive field test provides probable cause to search or arrest,” the alert reads. “Additional factors aside from a canine alert may be needed to establish probable cause.”

As with other states, law enforcement simply does not have the ability to distinguish hemp from marijuana. “Hemp is legal, marijuana is not. So how do we know one from the other?” said Dr. Dave Thomas, a criminal justice expert from Florida Gulf Coast University.

Minnesota

Some states, like Minnesota, are seeing a loosening up of already comparatively loose marijuana law enforcement. Minnesota decriminalized the possession or sale without the exchange of money of less than 42.5 grams of marijuana in 1976. The first offense became a petty misdemeanor punishable by a maximum $200 fine and possible drug education. Additional infractions face increased penalties. Possession of larger quantities of marijuana or the sale of any amount is a felony in Minnesota.

Minnesota has been growing hemp since the passage of HF 1437. Passed in 2015, the bill featured a hemp amendment which provided for the framework to develop a hemp pilot program under the state’s Department of Agriculture.

Even before the passage of the 2018 Farm Bill, Minneapolis police quit the practice of targeting small-scale marijuana sellers in downtown after revelations that nearly everyone arrested was black.

South Dakota

Right next door to Minnesota in South Dakota, it is a whole different story. Hemp Farming and research is not legal in South Dakota. Current state law in South Dakota even makes all forms of CBD oil illegal in that state.

House Bill 1191 was introduced this year and would have legalized the growth, production, and processing of industrial hemp and derivative products.

“After a robust discussion of HB 1191 during the recent legislative session, the legal status under state law did not change, hemp and CBD oils remain illegal in South Dakota,” said Attorney General Jason Ravnsborg.

South Dakota Governor Kristi Noem vetoed the bill on March 12.

Where it is Not a Problem

In states like Colorado, Washington, Oregon, California and many others, where recreational marijuana is legal, the issue of enforcement is obviously not an issue.

The question for law enforcement in other states will be how to deal with the issue moving forward. As with any new field cooperation between hemp farmers and CBD manufacturers and those entrusted to enforce existing laws within their state is vital.

At Fusion CBD we have been called upon for advice and help from law enforcement to make sure that laws are being followed.