In the states that have emerged as legislative battlegrounds for control of the burgeoning hemp industry, there are two factions with strong, opposing stances on the issue. Law enforcement officers and farmers are both significantly affected by the commercial and legal implications of lifting hemp prohibition. Because of this, Republican lawmakers now find themselves juggling the interests of both parties when deliberating on the new cash crop.
For big farming states, protecting hemp’s legal status within that state has significant economic benefits. According to 2018 estimates, sales of hemp products are projected to reach $2 billion by 2020. With the rapid expansion of the industry and new states opening up to hemp cultivation, those numbers may increase dramatically.
But some areas of the country have been reluctant to decriminalize marijuana, an issue that hemp legalization further complicates. The influx of now legal smokable hemp into the consumer market, which police say is difficult to distinguish from illegal marijuana, poses a pressing difficulty.
Two states in particular, Texas and North Carolina, may serve as interesting case studies for how the fraught intersection of the legal and the commercial is causing local officials to butt heads.
Law enforcement’s stake in hemp prohibition
When Texas Governor Greg Abbott signed new hemp legislation into law in June, he changed the definition of marijuana in the state. Both marijuana and hemp had previously been grouped under one umbrella, although marijuana contains much higher levels of THC. The new law acknowledges the distinction between these two forms of cannabis, but also makes it more difficult to prosecute marijuana cases.
Since June, prosecutors in many of Texas’ large counties have been dropping marijuana possession charges and holding off on filing new ones. The new law necessitates that law enforcement and the courts determine that the cannabis in question is marijuana rather than hemp before going through with the proceedings. There is currently no roadside test that can differentiate between the two substances, and crime labs may not be equipped to carry out the proper testing.
“This is not just Texas,” Peter Stout, president of the Houston Forensic Science Center, told The New York Times. “Everybody is struggling with this.”
In mid-July, the governor and other Republican officials wrote a letter to prosecutors saying the new bill did not decriminalize marijuana in Texas, and that courts should move forward with criminal proceedings as they had before.
Stout, whose lab runs tests for the Houston Police Department and other agencies, said testing for THC levels requires expensive equipment which many Texas crime labs don’t have. His state is not the only one facing this problem. Florida has encountered similar issues since legalizing hemp in July, and other states are also experiencing growing pains from decriminalizing marijuana.
In North Carolina, some law enforcement agencies and state legislators have been advocating the ban of smokable hemp, which can’t be distinguished from marijuana just by its look and smell. A new bill (SB 315) may accomplish just that if passed. And although a ban would make it easier for law enforcement to charge for cannabis possession, there may be an additional reason behind it.
Tyler J. Russell, an attorney who co-chairs the Hemp Law practice group at a Raleigh, NC law firm, said civil forfeiture is a major source of departmental profit for law enforcement agencies. Hemp legalization puts this revenue stream at risk.
As things stand now, “law enforcement officials can obtain probable cause for searches and seizures if, for example, there is a strong odor of marijuana emanating from a vehicle or home,” said Russell. “And it is very difficult for a potential defendant to refute the officer’s claim that he or she smelled an odor of marijuana.”
The state’s proposed ban on smokable hemp would protect the profitability of civil forfeiture, but also leave the door open for abuse of probable cause and asset seizures. Russell says this could be harmful for farmers and small business owners, and the loss of some asset forfeitures wouldn’t result in law enforcement agencies being unable to fulfill their duties.
Hemp bans could be damaging for agricultural economies
In North Carolina, where agriculture has historically made up a large chunk of the state’s economy, there is a precedent and motivation for passing legislation that benefits farmers. The profitability of tobacco, formerly the state’s biggest cash crop, has dramatically curtailed in the last decade. This has prompted farmers to turn to hemp as an alternative.
From 2017 to 2018, the total number of hemp growing states in the country went up from 19 to 23 and overall hemp acreage increased from 25,713 to 78, 176. Hemp licenses are now being issued at a faster rate than ever before, and new universities continue to involve themselves in hemp research.
According to the 2018 U.S. Hemp Crop Report, North Carolina cultivates the 6th most hemp acreage in the United States. But farmers investing in hemp may still be on shaky ground. And if the state outlaws or places restrictions on hemp, the agricultural community could take a huge hit.
Unlike North Carolina, Texas’ potential in hemp agriculture and commerce remains somewhat untapped. Despite the passing of new legislation, it remains one of a number of non-hemp growing states. The bill allows for the growth and sale of hemp in the state, but also stipulates that hemp cultivation cannot occur until the state has set up a federally approved program to monitor and regulate hemp cultivation.
Earlier this month, a North Carolina house committee approved a measure to delay the proposed hemp ban for a year and use that allotted time to work on developing tests that can better distinguish hemp from marijuana. Russell believes the ban needs to be rethought, and the legislature should consider the wide scope of those that might be affected.
In his letter to North Carolina’s house judiciary committee, Russell wrote “like you, I receive calls every day from business owners who are greatly concerned about the intended and unintended consequences of these bills.”
If farmers, dispensaries, and small businesses cannot legally possess hemp in smokable form, it will impact people at every level of the process—from cultivation to sale. This policy debate could be pivotal for the future of American hemp. But until lawmakers can move forward on this issue, hemp’s future will remain uncertain.