Last December, the 2018 Farm Bill legalized â€śhempâ€ť coast to coast, subject to local state approval for cultivation. In late July, Gov. Mike DeWine signed into law Ohioâ€™s hemp legalization measure, Senate Bill 57. With the gubernatorial ink still wet, stories emerged throughout August of confusion among law enforcement and even claims by citizens that the state had accidentally legalized all cannabis. This confusion isnâ€™t surprising, because the change in the legal status of hemp epitomizes Americaâ€™s patchwork, reactive approach to regulating cannabis (including psychoactive â€śmarijuanaâ€ť and nonpsychoactive â€śhempâ€ť).
The legalization of hemp was hailed as the green light for national hemp-derived cannabidiol product companies, with large national retailers including CVS, Walgreens and Kroger now fueling the momentum. But the â€śclarityâ€ť of hemp legalization is far hazier than many suspect.
In late 2018, the Food and Drug Administration approved hemp-derived CBD as a Schedule V drug and sought to scrutinize it as a food ingredient. Can CBD be ingested safely? â€śNot yet,â€ť said the FDA. â€śYes, Iâ€™m eating it now,â€ť said millions of Americans buying hemp oil, gummies and CBD coffee on Amazon. Apparently â€śhemp and CBD are legalâ€ť was an easier popular soundbite than â€śFDA Commissioner Gottlieb prefers that you not ingest cannabidiol quite yet.â€ť
Disproportionate enforcement activities by local police in recent months have only furthered the confusion. Look, for example, to Idaho and South Dakota as recently as last month, where state law enforcement have pursued felony drug trafficking charges against truck drivers for simply transporting a federally legal crop (hemp) in explicitly authorized interstate commerce. Their evidence for prosecution? Hemp happens to look exactly like marijuana. To a highly trained drug dog, cannabis sativa with less than 0.3% THC by dry weight (i.e., hemp) smells exactly like cannabis sativa with 0.3% or more THC by dry weight (i.e., marijuana). Thatâ€™s because they are the same plant.
Regulators and law enforcement have a wildly impractical task in attempting to regulate companies, plants and products using a distinguishing factor (hemp vs. marijuana) that is both arbitrary and mutable. There are no federal guidelines on how dry cannabis must be to test for THC, nor guidelines for the stage of cultivation or processing at which testing should occur. As cannabis dries, the THC content increases and that process can continue after harvest and testing. This means that temperature changes during transportation could turn “hempâ€ť into â€śmarijuanaâ€ť unless we have a federally standardized testing and transportation procedure and methodology, which we do not.
CBD and THC can be extracted from both federally noncompliant marijuana and federally legal hemp. If it is the exact same substance at the molecular level, should we really care?
In the face of federal illegality, draconian tax burdens, Wild West banking and competition from black market illegal operations, the state-compliant cannabis industry in America has managed to build a base of sophisticated investors, informed customers, medical professionals and even Republican supporters (gasp!), cultivating a promising industry that has generated millions of tax dollars and thousands of jobs. This industry persists in 33 states (and growing) because the vast majority of the country knows that the federal law is wrong and largely unenforced.
Consider that the Transportation Security Administration permits transporting a CBD vape pen on an interstate airplane. Although enforcement discretion rests with individual TSA officers, there are not practical enforcement procedures in place to distinguish between a federally compliant CBD vape pen and a federally illegal THC vape pen. How, given these facts, is a citizen to believe that we have anything other than a tacit federal approval of nationwide psychoactive cannabis?
When laws are irrational we lose faith in civil institutions. The cannabis industry is filled with â€śefficient illegality,â€ť meaning noncompliance meets with little risk of federal enforcement against state-compliant businesses. Federal prosecutorial dollars for action against state-compliant cannabis businesses are throttled through federal legislative restraints and 33 states have now decided that they would rather generate tax dollars from cannabis than spend tax revenue persecuting its nonthreatening uses. Continuing the charade of federal illegality is doing far more harm to public perception in the value of laws and law enforcement than full-scale legalization with sensible federal, state, and local regulation would do.
There’s a simple answer to the confusion over â€śhempâ€ť and â€śmarijuana,â€ť and it’s one that happens to reflect popular opinion. Itâ€™s time to fully legalize the cannabis plant and the cannabinoids extracted from it and build a data-driven industry from the existing state-sanctioned marketplaces. The sooner we stop pretending that century-old uninformed hysteria constitutes a sound public health policy, the sooner we can heal and grow (cannabis) together.
Benton B. Bodamer is an adjunct professor at the Ohio State University Moritz College of Law where he teaches â€śCannabiz: Exploring the Legalization of Marijuanaâ€ť in coordination with the collegeâ€™s Drug Enforcement and Policy Center.