• Hemp Revolution

Telling Hemp from Marijuana, a problem "testing" an industry


In 2019, when the newest Farm Bill (2018) went into effect, there was a historic change in the way in which Hemp has been treated by the law for 80 years. Long banned (by the Marihuana Tax Act of 1937) and eventually classified as a Schedule I Drug (By the Federal Controlled Substances Act)because of it's close relationship to Marijuana (amongst other reasons). The 2018 Farm Bill seemed to correct those oversights

Experience, however, has shown that despite being as monumental and Industry changing as the de-criminalization of Hemp was, the practical application was not to go as smoothly and there would be a few snags in the system. Many states were not ready and were slow to change laws and regulations about the growth and transport of Hemp.

State laws lag far behind industry needs in the area of Hemp. While most states have passed some form of Hemp legalization (or signed onto the federal rules), some states still lag behind. Most notably, Idaho still considers the transport of Hemp to be "trafficking" and the Governor (Noem) of the state of South Dakota, inexplicably Vetoed the bill passed by the states legislature to legalize Industrial Hemp (although a year later, she finally signed a version of it).

First, lets define what were comparing. There are several physical and chemical differences between Marijuana and its cousin Hemp, but the primary one that is our focus here is the concentration of Delta-9 Tetrahydrocannabinol (THC). For Hemp to be considered "legal" under the 2018 Act, it must be less than .3% concentration of THC by Dry Weight. Marijuana is, of course, much higher to give its psychoactive effects.

Hemp (or "Industrial" Hemp) has seen a surge in its recent use fueled by the Acts passage and supported by an already burgeoning CBD Industry, but Hemp in its raw form is used in so much more that just Hemp Extract (CBD) products. It is used to make clothes, paper, and any of nearly 50,000 different products. This raw Hemp must be transported from farm to factory to be made into these products. Here is where there is an issue. Sometimes when transporting the load of Hemp from point A to B, the truck must pass through a jurisdiction which has not changed its laws to match the times, or updated its policing to account for the Federal Law. Sometimes this results in truck drivers and others being falsely arrested and held while the issue is cleared up or pending trial. It also results in tons of raw Hemp being impounded and held as "evidence" for a non-crime.

There are certainly several issues that contribute to this egregious error. Lack of education and training in Law Enforcement is certainly one. The failure of Federal Agencies to lead on solving this issue, or even anticipating it. But, to simplify the main problem for our discussion, we are going to look at this one vital issue: There is a lack of field level drug testing kits that can differentiate Hemp from Marijuana!

But even where the law has been changed, there is still the issue of false identification of Hemp as Marijuana. This occurred in New York City when a Hemp Farmer had a large load of Hemp seized by NYC Police on its way to a local facility for Extraction. Another incident in Oklahoma in Jan. 2019 illustrates this. A proper Field Test for the difference would likely have squashed these issues quickly, and kept them out of the national spotlight.

The inability to differentiate the two (Hemp vs. Marijuana) has been one touted by Law Enforcement opposition to the legalization of Hemp, implying (falsely) that there is no way to tell the difference. Industry and plant experts know that physically, there is. But they do not use sight in the field, the officers and agents have to rely on the results of a field test, which is notoriously unreliable, or a laboratory test (which is time consuming and not immediate) for Hemp. Here are a few of those issues:

  • Since Hemp may contain up to .3% THC, a very sensitive test can read a False Positive which can then be taken as an illegal substance.

  • There is no single standard test and each different agency can have a different test with different reagents and sensitivity levels.

  • In the case where there is no test available (typically in smaller agencies), a sample will be required to be sent to a state or private lab for analysis. This usually requires the cargo to be impounded pending the results, and the personnel to either be jailed or placed on bail pending release or trial.

Industry experts and advocates have been attempting to get solutions into place which could reduce these incidents significantly. Amongst these, the simplest to implement would be advocating that agencies accept Third Party Lab Testing results, typically performed by the farmer and their hired labs, and included with every shipment. If those same agencies wanted to check, they could have a sample tested while letting the shipment go by unmolested, and pursuing enforcement action later if necessary.

Several federal agencies (primarily the DEA) in conjunction with other Law Enforcement groups, are searching far and wide for a better testing solution for officers and agents in the field.

One promising development is the testing of a field test kit that differentiates Hemp and Marijuana based upon their genetics, and not their THC concentration.

The new "Green Rush" is not without its hiccups and speedbumps for sure. However, in frustration, it is easy to forget that the Hemp Industry only recently "took off", especially with regards to growing and manufacturing. Although the state of society as we recover from the COVID crisis has taken the foreground, these incidents still occur, and likely will in the near future. But as Hemp becomes more accepted, people become more knowledgeable and state laws catch up, it will eventually become only a once in a while, isolated incident. Hemp is surely here to stay, and the technology and processes will catch up. Until then, we must stay vigilant, stay supportive of those affected, and strive everyday to educate and change the perception of Hemp brought about by disinformation and an 80 year absence.


#Hemp #HempLaw #DrugTesting #HempIsLegal

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