IS MARYLAND’S MARIJUANA LAW ENFORCEABLE NOW THAT HEMP IS LEGAL?

When President Trump signed the 2018 Farm Bill into law, few could have realized the broad ramifications that it would have on marijuana laws nationwide.  The Farm Bill is usually where agricultural farm subsidies, crop insurance, and nutritional priorities are set by the federal government.   But this year’s bill contained some surprises.  Thanks to Senator Mitch McConnell this year’s Farm Bill created a new process for legally growing and selling hemp (a close relation to marijuana).  This, in turn, has created a current reality where law enforcement may not be able to distinguish between the illegal Schedule I narcotic referred to as  marijuana and the now legal related plant known as hemp.

Hemp is defined in the new Farm Bill as cannabis with one key difference —  hemp cannot contain more than 0.3 percent of THC (the compound in the plant most commonly associated with the psychoactive effect).   As a result, hemp cannot make one feel “high” because it lacks any significant amount of THC.  But for decades, federal law did not differentiate hemp from other cannabis plants, which were effectively made illegal in 1937 under the Marihuana Tax Act and formally made illegal in 1970 under the Controlled Substances Act.

Although Congress has recently enacted legislation permitting the cultivation, processing, and distribution of hemp for a limited purpose under pilot programs to study hemp (often labeled “industrial hemp”) that were approved by both the U.S. Department of Agriculture (USDA) and the various state departments of agriculture.  This allowed small-scale expansion of hemp cultivation for limited purposes.  But now, the 2018 Farm Bill permits hemp cultivation broadly rather than on a limited basis.   It explicitly allows the transfer of hemp-derived products across state lines for commercial or other purposes. It also puts no restrictions on the sale, transport, or possession of hemp-derived products, so long as those items are produced in a manner consistent with the law.

MARYLAND’S HEMP STATUTE

This past legislative session Maryland created a new definition of marijuana that excluded hemp.  See Maryland Code Ann., Criminal Law, Section 5-101(r)(2)(vi).  When read in conjunction with the new 2018 Farm Bill, this now means that hemp can now be grown, processed, and distributed in Maryland, provided that it is done under the process outlined in the law.  This also means that at a traffic stop or anywhere else marijuana is allegedly identified, Maryland law enforcement will now need to distinguish between marijuana and hemp at the stop and seizure.  This may not be currently possible.

Hemp can have up to .3% of THC in the plant.  Marijuana has decidedly more THC than that.  Regardless, Maryland’s forensic crime labs, like many others across the country, crime labs do not currently have the equipment to distinguish between .3% or more of THC.  This means that functionally hemp (lawful) and marijuana (unlawful) will be indistinguishable given the current lab equipment possessed by Maryland forensic labs.

OTHER MYTHS DISPELLED

One big myth that exists about the Farm Bill is that cannabidiol (CBD)—a non-intoxicating compound found in cannabis—is legalized.  It is true that the Farm Bill removes hemp-derived products from its Schedule I status under the Controlled Substances Act, but the legislation does not legalize CBD generally.   As discussed last month, CBD generally remains a Schedule I substance under federal law.  The Farm Bill ensures that any cannabinoid that is derived from hemp will be legal, if and only if that hemp is produced in a manner consistent with the Farm Bill, associated federal regulations, association state regulations, and by a licensed grower.  All other cannabinoids, produced in any other setting, remain a Schedule I substance under federal law and are thus illegal. This prohibition, of course, does not apply to the pharmaceutical-grade CBD products that have been approved by FDA, which currently includes one drug:  GW Pharmaceutical’s Epidiolex.

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