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Police and Prosecutors Aim to Ban Smokable Hemp

Warn no ban could be "de facto legalization" of pot

by: Tristan Dufresne,

RALEIGH — It won’t get you high, it’s trending and for now it’s being treated as legal: CBD (cannabidiol) products are being used and sold in the open as candies, as tinctures, and as “smokable hemp” that lacks the illegal psychoactive compounds that would otherwise qualify the plant as a Schedule-1 narcotic.

In recent years, America’s health and wellness industry has embraced CBD products, hemp-derived palliatives that lack the psychoactive, illegal THC compound that led to marijuana’s prohibition as a demonized, illegal substance that resulted in millions of citations and arrests at federal, state and local levels

It’s the same plant species, so whether it has been bred for potency as an illegal psychoactive or for “impotency” as the ostensibly harmless hemp plant, cannabis all looks and smells about the same.

This similarity prompted five of North Carolina’s major law enforcement associations to call for a statewide prohibition on the retail sale of the legal smokable hemp plant.

As hemp-derived products (such CBD) continue their incursion into the mainstream of the lucrative “health and wellness” industry, they are creating a dilemma for ground-level law enforcement officers: sheriff’s deputies, local police, state troopers, and park rangers. And up the chain of command, they are causing headaches about how to treat substances that may or may not be illegal, but look, feel and smell as if they are.

Changing attitudes toward marijuana legalization aside, the mainstreaming of CBD has presented a dilemma for officers charged with enforcing North Carolina’s drug laws. Specifically, smokable hemp and marijuana — how do you tell the two apart?

“We aren’t really concerned so much about the [small amount] of weed on the front seat of a car; we are concerned about the 200 pounds that might be in the trunk,” said Fred Baggett, the legislative counsel for the N.C. Association of Chiefs of Police. If having such a large container of hemp is legal, police may not have probable cause to investigate a bag of marijuana, as the two look identical.

In a January 7 letter sent to media and members of the General Assembly, the North Carolina Association of Sheriffs, the Conference of District Attorneys, the State Bureau of Investigation and the Association of Chiefs of Police requested that state legislators move toward a full ban on all hemp sold for personal consumption by inserting a provision into the 2020 farm bill.

The joint statement argues that the current approach to the enforcement of cannabis laws has created an untenable quagmire for police and other investigators because “there is no practical way for law enforcement officers to distinguish the flowering variety of hemp...from marijuana because it is the same plant.”

”Without enactment of legislation clearly banning smokable hemp, we will have de facto legalization of marijuana,” the letter says.

The agencies have a valid point. Even an expert would be hard-pressed to distinguish between the hemp and cannabis sativa flowers without smoking them, since the level o THC (the primary psychoactive compound in marijuana) is the only difference between the two.

Traditionally hemp refers to cannabis in the context of manufacturing goods such as clothing or paper, and marijuana in the context of its cultivation for its medicinal and recreational properties.

As it stands, for smokable hemp to be legal in North Carolina, the dried weight of the plant cannot contain more than 0.3 percent THC. THC is just one of 113 cannabinoids contained in the various subspecies and breeds of marijuana, another being CBD, which has exploded in popularity in recent years as a health supplement.

The 2014 federal Agricultural Act legalized growing industrial hemp for the first time since WWII, as well as the extraction of CBD. The N.C. General Assembly followed suit the next year, creating an industrial hemp pilot program as a provision in the 2015 state Farm Bill.

It is the 2020 Farm Bill (SB 315) that may curtail the nascent hemp industry if passed in its current form. The bill would not halt production entirely, but would allow growers and wholesalers to sell hemp and cannabis flowers only to CBD manufacturers, and not to retail businesses. The use of hemp for non-consumption purposes would also remain legal.

Even if SB 315 passes both houses, the new law may still be preempted by federal statutes, as legislators in Indiana learned in September 2019 when federal judge Sarah Barker ordered smokable hemp back on the shelves after a brief ban.

Executive Director of the North Carolina Industrial Hemp Association Blake Butler spoke to the Sundial over the phone, saying the organization agrees with that judge’s opinion; “Even though it looks and smells like marijuana and has caused some confusion, it’s still an agricultural commodity as directed by the [federal] Farm Bill.”

Butler maintains that there are solutions to the problem less severe than a ban, two being the passage of an open container law, similar to alcohol, and the development of field testing kits that police could use at roadside stops.

Some jurisdictions in other states have been experimenting with field testing. In Virginia, state scientists partnered with a Swiss company to introduce such a test last year. The state used grant money to purchase 16,000 of these field tests, which police are currently using. But the tests aren’t perfect.

“The test can tell us if there is a greater concentration of CBD than THC” and vice versa, Linda Jackson, director of the Virginia Department of Forensics, told the Sundial. “The test can’t determine if something is absolutely marijuana or hemp, but it can give a direction to whether it is more likely one or the other.”

However, Jackson said, “The tests are not sufficient to stand in court,” and if a legal determination needed to be made, samples would need to be sent to a laboratory with more sophisticated instruments.

Field tests and open-container limitations address the issue of public intoxication Issue; however, they do not deal with the much larger conundrum of criminals trafficking marijuana within the packaging of legal hemp products.

“Law enforcement has a responsibility to enforce the existing marijuana laws,” Baggett, legislative counsel for the N.C. Association of Chiefs of Police, told the Sundial. “Now, if [legislators] want to repeal the prohibition of marijuana, then we don’t have a problem with hemp.

A spokesperson for the Chapel Hill Police Department did not want to comment for this story, and their leadership has not taken an official stance on the matter, but did say the problem is novel enough that any useful data is scant.

Randy Young, the University of North Carolina Media Relations Manager did provide the following statement via email: “In researching our police records Jan. 1, 2019 through present, there have been no incidents where UNC Police officers reported confusion or misidentification of (legal) smokable hemp for marijuana.”

According the Brightfield Group, a company that conducts cannabis and CBD research, smokable hemp is a $70.6 million industry nationwide.

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