The U.S. Department of Agriculture (USDA) announced that they were “delaying the enforcement of certain requirements” to grow hemp, namely the need to have hemp crops be tested by laboratories registered with the Drug Enforcement Administration (DEA), as well as the former requirement of having illegal hemp crops destroyed by DEA-registered “reverse distributors” or law enforcement. “Currently, there isn’t sufficient capacity in the United States for the testing and disposal of non-compliant hemp plants,” said USDA Under Secretary Greg Ibach.
Since hemp was federally legalized by the 2018 Farm Bill, signed into law by President Donald Trump in December 2018, the cannabis plant has been considered a commodity crop. The difference between what is called hemp and marijuana—both of which come from the cannabis sativa plant—is the concentration of tetrahydrocannabinol (THC), the psychoactive substance of cannabis. To be considered hemp, crops must contain less than 0.3% THC. On Thursday, Oct. 31, 2019, the USDA published the interim rules for the cultivation of hemp. One key element of these regulations was that hemp crops had to be tested by federally approved laboratories and destroyed by federally approved agents if THC levels were too high to qualify as hemp. Now hemp growers nationwide can access more options.
Before it was lifted, this requirement made DEA-approved laboratories a central component of the entire hemp industry. There are only 45 such laboratories in the entire nation, according to the USDA, of which only two are located in Wisconsin (California has seven, Texas and Florida each have four, and New York only has one). The two Wisconsin labs, Accelerated Analytical and Assurance Laboratories, are both located in the greater Milwaukee area.
“The DEA requirements provide for a measure of uncertainty in testing to be reported, resulting in increased accuracy. It also regulates proper handling of controlled substances for general safety,” says Ilke Panzer, CEO of Assurance Laboratories and its hemp-testing service, VerdaSure. “Many laboratories were created specifically for hemp testing in the past years, often without prior regulatory experience that goes with operating in a food-grade or health care-related environment. Testing technology varies greatly, and some labs have limitations in accuracy due to their choice of technology. Many such laboratories will need some time to upgrade technology and quality systems in order to meet the requirements for DEA registration.”
VerdaSure uses liquid chromatography-mass spectrometry technology to test hemp, which is “a superior detection method,” according to technical director Adam Jensen. “But, if you’re doing a brand-new lab for hemp testing only, you’d be hard-pressed to spend that kind of money on testing technology,” Panzer adds. “Capacity is not an issue in Wisconsin. VerdaSure could already provide accurate and timely testing to everyone in the state. Wisconsin is in the fortunate situation to have DEA-registered labs such as VerdaSure, and the state has decided to continue its oversight of the Hemp pilot program,” Panzer says, adding that she still “supports the decision to delay implementation of DEA registration until it is ‘practical.’” “Some other states don’t have highly accurate DEA-registered labs, and it is still difficult to ship product across state lines, so growers in those states don’t have great options. This needs to be addressed for a successful nationwide hemp industry,” she says.
Did Texas Accidentally Decriminalize Marijuana?
Historically, Texas is the state with the harshest anti-marijuana laws; even today, possession of a tiny amount of marijuana carries a sentence of up to one year of incarceration, and one can be sentenced to up to 99 years in prison for simple possession. Being convicted of a marijuana-related offense can always incur a massive fine (between $2,000 and $100,000) and the automatic suspension of one’s driver’s license. Possession of any amount of hash or concentrate, or even a rather small amount of regular marijuana, is a felony in Texas.
Despite all that, in the Lone Star State, marijuana prosecutions have dropped by more than half in the past months. Here’s the trick: Hemp, which is legal, is completely indistinguishable from illegal marijuana without extensive lab tests. The two are the same plant, look and smell the same, and the only actual difference is the THC content. As such, Texas laboratories have been flooded with far too many cannabis samples to determine which ones are legal and which ones are not. This is a stark change, as all cannabis products could be considered illegal prior to the legalization of hemp.
“Since the law change, prosecutors and state crime labs have dropped hundreds of pending marijuana charges and declined to pursue new ones because they don’t have the resources to detect a substance’s precise THC content, arguably keeping them from the evidence they need to prove in court if a cannabis substance is illegal,” The Texas Tribune reports.
Steve McCraw, director of the Texas Department of Public Safety (DPS), recently announced that Texas state labs will not test for minor marijuana possession cases. “Annually, there are more than 80,000 misdemeanor marijuana arrests made in Texas. DPS will not have the capacity to accept those misdemeanor cases,” he wrote, mentioning that Texas lawmakers did not provide additional funding to address the vastly increased workload that the laboratories would have to face. As a result, prosecutors across Texas started rejecting cannabis cases without an attached lab test proving it is illegal marijuana rather than legal hemp.
“Unless a defendant stipulates that his cannabis is marijuana and not hemp, any criminal cases may need to wait to go to trial until testing on them can be completed,” the Texas District and County Attorneys Association warns its members. “If your judges will not grant lab-induced continuances, then you may have to get creative in your disposition of those cases—if you accept them at all.” Some law enforcement agencies are turning to expensive private labs for testing, while others are choosing to entirely forgo arresting people for minor offenses.
What Texas is going through isn’t an isolated case. Even before hemp was legalized, the three laboratories of Wisconsin’s Division of Forensic Sciences enforced weeks-long delays in cases requiring tests for controlled substances. In 2018, they tested 5,422 drug cases, 93% of which were simple possession cases; that same year, law enforcement carried out 19,214 arrests for marijuana-related crimes. If all these cases require testing to determine if the cannabis products were legal hemp, the Division of Forensic Sciences’ 43-day wait time for drug offenses would vastly increase.
If government funds cannot deal with the massive influx of lab tests required to distinguish between legal hemp and illegal marijuana, this could put more pressure on the federal government to decriminalize marijuana—or to criminalize hemp once again.
