BY CASEY MANN
News + Record Staff
RALEIGH — Hemp farmers, producers, and advocates are circling the wagons as two bills that are making their way through the Legislature threaten to undercut the budding industry in North Carolina. If passed, the laws would have serious implications to the industry and the farm economy in North Carolina.
The crux of the dispute is over smokable hemp, a non-psychoactive plant — meaning, it cannot get you “high” — that is legal under federal statute and is cultivated, sold, and used across North Carolina. According to the N.C. Dept. of Agricultural, 85 percent of North Carolina hemp farmers grow for the “flower” or smokable hemp.
Hemp cultivation and sale has been legal in North Carolina since 2015 when the Legislature created a pilot program based on The Agricultural Act of 2014 passed by Congress. Since then, over 1,000 North Carolina farmers have invested millions of dollars in the hemp industry.
Last year, Congress made additional rules for hemp farming, loosening restrictions and removing the plant from the schedule of controlled substances. The General Assembly’s Farm Bill (SB315) currently under discussion, was an attempt by the Dept. of Agriculture and lawmakers to move beyond the pilot program and create regulations for the industry.
Organizations representing law enforcement are seeking a ban of the flower. According to a letter sent to lawmakers from the State Bureau of Investigation earlier this year, the SBI is concerned that smokable hemp and marijuana are too difficult to distinguish and will reduce it’s ability to have probable cause to search vehicles based on the smell of marijuana.
“The unintended consequence upon passage of this bill is that marijuana will be legalized in NC because law enforcement cannot distinguish between hemp and marijuana and prosecutors could not prove the difference in court,” the letter reads.
Marijuana typically contains between 20-40 percent THC, the psychoactive ingredient whereas hemp contained less than .3 percent. According to a post on the UNC School of Government Blog by Phil Dixon, an attorney and staff member with the organization, law enforcement does not currently have a field test do determine the amount of THC in marijuana and hemp. However, he notes that the N.C. Dept. of Agriculture does regularly test the leaves of hemp plants in North Carolina at two private labs to ensure that it is below the allowable limit of THC.
“So, it appears that while testing to distinguish hemp from marijuana exists, the state law enforcement lab infrastructure is not currently equipped to do so, and officers on the ground can’t tell the difference, at least not before the product can be seized and analyzed in a lab capable of performing this kind of testing,” Dixon’s post reads.
During a House Standing Agriculture Committee meeting last month, representatives from the N.C. Dept. of Agriculture noted that they are beginning the process of testing a field test. The test is used in Switzerland where smokable hemp is widely popular to help law enforcement distinguish between the legal plant and marijuana, which is illegal there.
Even so, law enforcement pressure and it’s champion in the N.C. House, Rep. Jimmy Dixon (R-District 4), have permitted the passage of an amendment that would ban of the smokable flower to begin Dec. 1, 2019. The Senate version of the bill contained a ban in 2020 if the concerns over a lack of field tests for law enforcement as well as concerns about transporting the plant were not addressed at that time.
Rep. Dixon has taken the effort a step further.
In SB352, there is language that will add smokable hemp to the definition of marijuana, making the cultivation, sale, and consumption carry the same penalties as marijuana which is in conflict with a 2018 federal law which removed the plant from the controlled substance schedule.
Rod Kight, an Asheville-based attorney who represents businesses in the legal cannabis and hemp industries all over the U.S. believes that if the Legislature passes one or both of the proposed laws, it may be faced with lawsuits as is the case currently ongoing in Indiana, a state that has tried to pass similar laws. The farmers suing in that case argue that the laws are contrary to Congressional Conference Report for Agricultural Improvement Act of 2018 (2018 Farm Bill) which says that while states may put regulations on hemp production and sale, they “are not authorized to alter the definition of hemp or put in place policies that are less restrictive than this title.”
“In other words, by prohibiting and criminalizing a form of federally lawful hemp, Indiana has overstepped its authority and violated federal law,” Kight writes.
With millions of dollars of investment by farmers, producers, and retailers in North Carolina over the past four years to build the hemp industry, organizations such as the North Carolina Industrial Hemp Association are rallying their supporters to try to protect and preserve their livelihoods. Blake Buckley, executive director of the North Carolina Industrial Hemp Association, calls the move “devastating to the industry” and vowed to “take action immediately” to fight the ban.
“It’s time for us to realize that this will not end unless we can move and activate our entire base across North Carolina and get back to a good compromise to ensure these restrictive amendments and others don’t devastate our industry going forward,” Buckley said.
As all these amendments that have been passed in the N.C. House are different than the bills passed by the N.C. Senate, they will still have to be reviewed in a conference committee. It is unclear if the bills in their current state will pass this year. Sen. Brent Jackson (R-District 10), who shepherded the Farm Bill through the N.C. Senate prior to its reaching the N.C. House has intimated that he would rather pull all the hemp provisions from the Farm Bill rather than pass Dixon’s versions.
Reporter Casey Mann can be reached at CaseyMann@Chathamnr.com.