Recently, the police have been boastful about cracking down on what they think are brazen criminals profiting from the sale and transport of cannabis.
However, in reality, they are mistaken. Thanks to confusion between illegal THC-rich cannabis and newly-legal, low-THC cannabis – legally known as hemp – a number of lawful individuals have been unfairly targeted by law enforcement officials.
After being prohibited for decades, hemp (defined as cannabis with less than 0.3% THC) was removed from Schedule I controlled substances in the tail end of 2018 thanks to the passing of the Farm Bill. This returned hemp to its traditional position as an ordinary agricultural commodity, rather than a being lumped together with THC-rich cannabis as a drug.
The domestic liberation of hemp was met with much joy and optimism, however, the industry has not had an easy first year. Difficulties growing a new crop, extreme weather, a shortage of processors and buyers – these are all issues that farmers have faced during the 2019 growing season.
Along with all these challenges facing the new industry, there is one more that is especially concerning growers, processors and buyers. And that is the fact that the police seem to be very confused between legal hemp and illegal THC-rich cannabis.
And it’s somewhat understandable as hemp – especially when grown for smokable flower- and cannabis can look identical. In fact, only a chemical analysis of the plant matter can reliably differentiate between the two.
NYPD Hemp Bust
The clearest example of the confusion among law enforcement involves a recent case in Brooklyn, NY. A couple of enthusiastic NYPD officers confiscated 106lbs of raw hemp after a suspicious Fedex driver took it upon himself to report the shipment.
This was despite the fact that the cargo was shipped along with third-party lab reports and necessary documentation proving it was legal hemp.
The officers involved then contacted Green Angel CBD – who had ordered the $30,000 hemp shipment from a Vermont farm – and told them to come and collect their cargo. Upon arrival at the station, however, the brother of the company’s owner was arrested and charged with felony marijuana possession before being released on bail the next day.
The next day, the 75th Precinct tweeted a photo of their impressive haul along with a boastful caption reading, “Great job by Day Tour Sector E yesterday. Working with FedEx and other local law enforcement, they were able to confiscate 106 Lbs. of marijuana, and arrest the individual associated with the intended delivery.”
Green Angel CBD owner Oren Levy responded on social media as well as posting his side of the story on Reddit. He claims the hemp contains 0.14% THC and that the testing methods used by law enforcement are unreliable as they are unable to decipher precise THC concentrations, only the presence of THC.
Needless to say, the bust was a bust and all charges were dropped. Brothers in Hemp is now filing a lawsuit against the city of New York.
It’s thought the authorities may be unsure over the lawfulness of hemp thanks to section 21 of the New York Public Health Law, which classifies “marihuana” as “all parts of the plant of the genus Cannabis.”.
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It’s not the only case of kind, either. A man was arrested in South Dakota in July after he was stopped in his vehicle while delivering 300 lbs of hemp to a Minnesota processing facility., Authorities got a positive reading for THC and as the substance “looked and smelled like raw marijuana,” the delivery driver was charged with possession of marijuana.
Back in January, Idaho authorities stopped a semi-truck carrying nearly 7,000 pounds of hemp. The police arrested the driver and confiscated the hemp. Despite later being proved to be hemp (less than 0.3% THC), the hemp wasn’t returned and the driver of the truck still faces felony drug trafficking-marijuana charges.
Also in Idaho, in May, authorities seized 69 lbs of hemp that was passing through the state from Oregon. The shipment was held for 6 weeks before being released.
At least three others have been arrested and charged with felony drug trafficking after being involved in the transportation of industrial hemp. This is despite the USDA issuing a memorandum instructing states not to interfere with the transportation of hemp.
The legalization of hemp and the fact that it looks and smells the exact same as THC-rich cannabis has seen some police departments take a more cautious approach to dealing with individuals found in possesion.
In August, a memo was sent by Miami-Dade State Attorney Katherine Fernandez Rundle to the county’s 35 police departments stating her office would no longer be prosecuting low-level marijuana cases due to its likeness to ‘marijuana’.
A growing number of people (possibly in the thousands) have even had their cases dropped after being caught with cannabis. Across the country, many prosecutors have realized that they don’t have the means to prove that the plant found is not in fact hemp.
The authorities aren’t the only ones who are getting confused between hemp and THC-rich cannabis. A number of farms around the country have also had to deal with thieves mistaking their non-psychoactive plants as ‘weed’, which they believe will make them a tidy sum on the black market.
As a result, many growers have had to up their security and install warnings and clear signage making it clear that while it might look like high-inducing pot, it is in fact hemp.
One incident at a farm in Berlin, N.Y. saw trespassers cut down and steal a large amount of hemp plants before attempting to sell their loot on social media as an illicit haul of THC-rich cannabis.
New USDA Rules
The regulatory framework of the production, transport and sale of hemp was clarified in October, when the USDA recently publishing its interim final rule (Rule). Many of the new rules were labelled by industry leaders as highly restrictive and harmful to the industry.
The main point of contention are the strict testing methods and low cut-off point of allowable THC. The rules stipulate that the top 2 inches of the plant are to be tested and that anything testing over 0.3% total THC will be considered unlawful and is required to be destroyed.
Additionally, all testing must be conducted by a DEA-approved lab. These new requirements add to the challenges that the industry is already facing, such as oversupply and a lack of processing facilities.
While it is hoped that the publishing of these new rules will go some way to clearing the confusion that many police forces are encountering when it comes to hemp, many experts predict that the mistakes will continue for some time – perhaps even until the prohibition of all cannabis is finally lifted.
Cannabis with up to 1% of THC has been legally grown and sold in Switzerland on a wide scale for a couple of years. This led to local law enforcement suffering from the same problems of telling the difference between legal and illegal cannabis during street searches and house raids.
Their answer was a simple test that allows an instant analysis of the plant matter. It’s a simple piece of equipment; when mixed with the plant matter, a liquid will turn blue if the product tested is legal hemp with less than 1% THC, or red if it has a higher concentration of THC.
This cheap test quickly solved a lot of problems for the Swiss police and is clearly needed in the U.S.
The emerging hemp industry is already facing many difficulties in its first few years. Misconceptions and confusion around hemp is one of the most pressing. Not only are people’s livelihoods at stake, but also their freedom in may cases.
The wrongful persecution of those who work with legal hemp is a carry-over from long-fought war on drugs and the demonization of the cannabis plant. However, as the research into cannabis deepens, and the consumer demand of CBD, hemp, and other cannabis compounds continues to grow, perceptions about the controversial plant will shift.
Perhaps then police won’t be left red-faced after childishly gloating on social media over confiscating a fully legal agricultural commodity and arresting an innocent man.
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