Is ‘Smokable Hemp’ Legal?

When the federal Farm Bill passed in December of 2018, it’s doubtful that its crafters — like Senate Majority Leader Mitch McConnell — anticipated what we are now witnessing. In convenience stores, smoke shops and truck stops across the country, what is to all outward appearance marijuana bud is freely and openly for sale. To the eyes as well as the nose, this stuff is marijuana: fragrant flower-tops, sticky with resin. There’s only one real difference: it doesn’t get you high.

While it may be rich in the non-intoxicating cannabinoid CBD, it contains less than 0.3% THC — not nearly enough to feel high. This makes it “hemp” under the law — and, its purveyors insist, therefore perfectly legal.

And so far, the courts agree with them.

Indiana Injunction Impedes Prohibitionists

On Sept. 13, 2019 a federal district court in Indiana handed the hemp industry a first victory on this question. Judge Sarah Evans Barker issued a preliminary injunction against a portion of the state’s hemp law that criminalized what lawmakers called “smokable hemp” — regardless of the THC content.

Indianapolis-based CY Wholesale brought the suit, arguing that the state law was in direct conflict with the U.S. Farm Bill (officially the Agriculture Improvement Act of 2018), which removed hemp from the federal schedule of controlled substances and prohibits states from enacting statutes more stringent than the federal code.

In issuing her injunction, Judge Barker found that the plaintiffs are likely to win their case on the merits. As local Indypolitics reports, it is unclear if the state plans to appeal the decision.

This does not bode well for the moves by other states to similarly ban this quasi-marijuana. In late August, the North Carolina Farm Act passed the state house in Raleigh after long debate. The bill, now before the state senate, would revise the definition of hemp to exclude “smokable hemp.”

As the Raleigh News & Observer reports, lawmakers disagreed on whether banning the stuff would make “smokable hemp” a controlled substance like actual marijuana. But hemp growers objected to associating it with marijuana at all. They said the law would hurt farmers, making it harder to compete with farms in other states and undercutting their chance of getting crop insurance.

The house heard testimony against the bill by Fen Rascoe, a hemp farmer and member of the North Carolina Industrial Hemp Commission. He said: “Take the marijuana out of it; it’s not marijuana.”

Is It Marijuana or Isn’t It?

Even if this stuff isn’t marijuana, however, its closeness to it is what is driving these legally dubious bids to ban it.

Hundreds of cannabis possession charges have been dismissed in Texas over the past months because police don’t have labs that can differentiate between actual marijuana and “smokable hemp.” Gov. Greg Abbott, his attorney general and allied politicians have made abundantly clear their unhappiness with the situation. 

Other states are scrambling to update their test kits to distinguish between CBD and THC in confiscated samples. But until the new technology is in place, cops and prosecutors are stymied. The prosecutor for Florida’s Miami-Dade County is the latest of several around the country to halt minor cannabis cases due to this dilemma.

CBD is not entirely in the legal clear, despite passage of the Farm Bill, because the Food and Drug Administration has still failed to promulgate regulations governing use of the cannabinoid. But the FDA rules only concern CBD’s use as an additive or ingredient in food or drugs — they do not apply to a simple hemp flower.

Cannabis Sativa, Or Why We Can’t Just Call It ‘Marijuana’ and ‘Hemp’

A new report jointly produced by the cannabis industry number-crunchers BDS Analytics and ArcView Market Research explores the rapid mainstreaming of CBD products. Entitled “CBD: Cannabinoids Escape the Dispensary,” the report sheds some light on the “smokable hemp” dilemma — without actually using that phrase. But the report’s imprecise terminology also, unintentionally, provides a case study in the confusion on the question. 

“CBD can be derived from either cannabis or hemp, as both are simply varieties of Cannabis sativa,” the report states. “Sales of products that use CBD derived from cannabis are limited to the licensed medical and adult-use dispensary channel in the 33 U.S. states, Washington, DC, and four territories that have thus far superseded federal law to legalize cannabis at least for medical use within their own borders. Cannabis-derived CBD isolate, a compound processed to remove all substances besides CBD, technically should be legal for products sold beyond the dispensary channel but this has yet to be tested in the courts.”

Hemp-derived CBD products (or actual “hemp,” including the flower) “can legally be sold anywhere,” and in 2018 generated $1.9 billion in sales — a figure expected to rise to $4.1 billion.

This again raises the semantic dilemma posed by the industry’s reluctance to use the word “marijuana” because of the racist stigma traditionally associated with it. However, it is an absurdity to say that cannabis and hemp are both varieties of cannabis, when really they are both the same plant — the cannabis plant — but with different levels of THC.

However much industry dogma now eschews the word “marijuana,” it can be effective to use it to differentiate between the two legally defined categories of cannabis: that with high THC (which has been lovingly referred to as marijuana for decades) and that with low THC below 0.3% (legally codified as hemp).

In the new legal environment, this distinction is breaking down somewhat. Increasingly, hemp is being grown for CBD extraction rather than the traditional industrial uses. When you’re talking about a fragrant bud, obviously intended for smoking — is it really hemp? Or just marijuana that doesn’t get you high? In this case, we’d be talking about categorizing the cannabis plant not based upon how much THC it has, but based on what the plant is grown for. Might we suggest a rewrite such that “hemp” concerns varietals of the cannabis plant grown for fiber, seed and hull, while “marijuana” concerns varietals grown for flower, regardless of the cannabinoid profile?

In any case, while there are certainly good reasons to oppose the prohibition of “smokable hemp,” there is also an argument for not caving to the stigma by rushing to disassociate it with “marijuana.” 

Finally, states cannot “supersede” federal law — only ignore it. Federal law remains in effect within their borders. Since California legalized medical marijuana in 1996 and Colorado and Washington led the way to general adult-use legalization in 2012, states have been basically ignoring — in effect, defying — the federal Controlled Substances Act. It would certainly be an irony if states now succeed in prohibiting “smokable hemp,” similarly defying the Agriculture Improvement Act.

TELL US, have you ever smoked hemp?