A bill moving forward in North Carolina would put hemp on stronger legal footing in the state, by explicitly allowing it to be used not just for ropes and clothing but also for human consumption, in smokable or edible forms.
The wide-ranging North Carolina Farm Act of 2019 has provisions for everything from hog farms to shooting ranges and machine repair. But its proposed rules on hemp have been attracting the most attention, pitting farmers and police against one another.
Hemp looks and smells like marijuana but can’t get users high, since it has only a miniscule amount of the chemical THC. It was illegal anyway for many years, although in 2015 the state began easing its restrictions on hemp, especially for industrial uses.
Consumable hemp is also a growing industry, and farmers here want to join in. Police, however, say that as long as they can’t tell the difference between legal hemp and illegal marijuana, they will have a hard time arresting marijuana users.
”One thing or the other may have to go—either we regulate hemp (at least in the flower form) out of existence or we further loosen the criminal regulation of at least small amounts of marijuana,” wrote Phil Dixon, a former criminal defense attorney, for the UNC School of Government when the Farm Act debate was starting up last month.
North Carolina grows half of all the tobacco in the United States, although shrinking demand has many farmers eying hemp.
“We’ll be employing about 90 North Carolinians, in an economically distressed rural county, at an average wage that is high above the median wage for that community — and with benefits,” hemp farmer Scott Propheter of Martin County, which is near Greenville, told lawmakers on Tuesday as a committee in the N.C. Senate debated the bill.
Plenty of consumable hemp products are currently sold in North Carolina dispensaries, such as smokable hemp and CBD-infused edibles. But multiple news outlets, including the News & Observer, have previously reported that the legal status of those products is unclear.
The State Bureau of Investigation wants them to be unquestionably banned. The SBI recommends making smokable hemp completely illegal, and CBD oils illegal except for people who are already allowed to use it for epilepsy. The SBI’s argument is not that the products themselves are dangerous, but rather that if they’re legal, it would make it harder for police to make marijuana arrests.
“Hemp and marijuana look the same and have the same odor, both unburned and burned,” the SBI’s memo says. “This makes it impossible for law enforcement to use the appearance of marijuana or the odor of marijuana to develop probable cause for arrest, seizure of the item, or probable cause for a search warrant.”
No more marijuana arrests?
Republican Sen. Brent Jackson, who is a farmer himself and the lead sponsor of the Farm Act, said Tuesday that he has no intentions of legalizing marijuana by opening up the hemp market.
“This is a new and upcoming and hopefully a booming industry,” Jackson said, adding that hemp farming has “more pros than cons, I’m proud to say.”
Jake Farrar, a business lawyer with the Van Winkle Law Firm in Asheville, wrote an update on hemp for the N.C. Bar Association in February, after Congress had also passed new pro-hemp rules at the federal level.
“There is great market potential for interested North Carolina growers and sellers, and there may be advantages to being a first mover to acquire key assets, including real estate and intellectual property,” he wrote.
The laws are bound to keep changing, he added, so entrepreneurs “will have to remain flexible to adapt to the shifting winds of regulation in the months and years to come.”
As for the fight over how police are expected to differentiate between hemp and marijuana, Jackson and multiple hemp farmers who came to Tuesday’s committee hearing all said there are some field tests already available, and better ones in development — including some that are currently under review by the Drug Enforcement Administration for its official stamp of approval.
So instead of immediately banning smokable hemp and CBD oils, like the SBI wants, the Farm Act has a tentative ban that wouldn’t go into place until 18 months from now, at the end of 2020. Jackson said that should be enough time for law enforcement to get field testing equipment, at which time the ban can be reconsidered.
“I do not see it taking long for these type of tests to be available,” he said.
But Mike Waters, who is the District Attorney for a number of rural counties north of Greensboro and Durham, asked lawmakers to put the ban in place sooner. Waters said he knows people who grow and even use hemp products, but is concerned about not being able to win pot convictions if cops can’t tell the difference between legal hemp and illegal marijuana.
“For the interim, we won’t be able to enforce laws related to marijuana,” he said.
The lawmakers at Tuesday’s meeting of the Senate Judiciary Committee did not take up the requests from Waters or the SBI. But the bill still has at least two more committee stops in the next few days, then it will be voted for in the Senate, and then it will go to the House of Representatives and repeat the process. In all those meetings there will be many opportunities for the current language to change.
Creating a new type of crime
The current version of the bill does have some law enforcement-friendly provisions, like creating a new type of felony in North Carolina for people who use hemp fields to hide marijuana plants.
However, as PolitiFact NC reported three years ago, anyone who does that would be a dumb criminal.
Republican Rep. Larry Yarborough — who represents many of the same areas where Waters serves as the head prosecutor — said back in 2016 that if a marijuana plant “gets the pollen (from hemp) and goes to seed, it becomes worthless. The THC goes away.”
PolitiFact rated that “Mostly True.”
Marijuana plants gain potency by sending energy to THC production, instead of to creating seeds. Yet proximity to hemp would force the marijuana plants to pollinate and start growing seeds. That would not only destroy the value of the marijuana, plant scientists say, but would also harm the value of the hemp, creating losses on all fronts for the would-be criminals.