Current laws create major challenges for law enforcement
The DEA and local law enforcement are desperate to find new methods to aide in distinguishing marijuana from hemp. After all, the two crops are identical and are only distinguishable by scientific analysis. While a truckload of hemp is federally legal, a truckload of marijuana is a federal felony — a dream scenario for illicit smugglers and a nightmare for the DEA.
Despite federal law now providing for a legal way to produce and sell hemp, the Farm Bill left the means of regulation up to the states. While states are authorized to continue banning the cultivation and sale of the agricultural commodity, the Farm Bill explicitly prohibits states from impeding on the ability to transport the plant across state lines, regardless of whether the state’s government chose to provide for a legal hemp market. Not only does the state-by-state regulation of hemp make enforcement challenging, but law enforcement has been struggling to implement effective ways to differentiate legal hemp from its federally illegal cousin, marijuana.
Hemp and marijuana are essentially identical plant species. The legal definition of hemp is a cannabis plant that contains no more than 0.3% THC on a dry weight basis. Despite this arbitrary threshold, it may sound like a simple distinction. However, cannabinoids cannot be seen with the naked eye, and drug dogs are not trained to detect specific levels of THC. To the cop on the side of the road, the two plants look the same, smell the same and feel the same; they’re really identical twins.
The only way to confirm with certainty whether a plant is hemp or marijuana requires scientific analysis. Historically, when all species of the cannabis plant were federally illegal, law enforcement employed field tests to detect the mere presence of THC. Such tests used to be sufficient when the legal threshold was zero THC. Now that the mere presence of THC is no longer the legal standard, most, if not all, of the field tests once employed by law enforcement have become obsolete.
While technology that is capable of measuring precise THC levels does exist, these are often expensive and inaccessible for law enforcement, and not practical for roadside use. Tech companies are developing and proposing simplified testing procedures that could be easily implemented by law enforcement, but the reality is that roadside tests will not sufficiently aid law enforcement in monitoring illicit drug trafficking. THC levels vary within a single plant: a stem may yield a higher or lower test when compared to its leaves or buds. To accomplish an accurate evaluation of whether illegal marijuana is being transported, a law enforcement officer would have to test each plant, each leaf, each bud. The perfect testing solution distinguishing marijuana from hemp plants is years away from being developed.
Smugglers can easily disguise marijuana hidden inside hemp. The television shows Breaking Bad and Narcos and Clint Eastwood’s film The Mule are perfect examples of how entire smuggling industries are based on this concept. The majority of illegal drugs enter the U.S. while hidden away in secret compartments of vehicles — door panels, roofs, gas tanks, tires and even sometimes engines. Trucks and trains carrying fresh produce have been used to smuggle narcotics. What’s to stop a smuggler from the perfect crime: hiding illegal marijuana plants within legal hemp plants that happen to be identical to the street cop?
So, what’s the alternative?
When it comes to hazardous waste, manifests are the primary component of the “cradle-to-grave” regulation in the United States. Manifests provide a paper/electronic trail of hazardous waste from generation through disposal. Transporters of hazardous waste are required to obtain an Environmental Protection Agency-issued identification number. EPA hazardous waste manifest systems track hazardous waste from the time it leaves the generator facility where it was produced until it reaches the off-site waste management facility that will store, treat or dispose of it. Transporters must sign and date manifests to acknowledge receipt and return a copy to the generator before leaving the generator’s property. Transporters are required to keep a copy of the manifest for three years.
Similarly, shipping companies use special packaging, labeling and methods when transporting radioactive materials. For example, packaging of nuclear materials must be approved by the U.S. Nuclear Regulatory Commission before shipping. If it meets NRC requirements, the NRC issues a radioactive material package Certificate of Compliance (CoC) to the organization requesting approval of the package. To be certified, the package must be shown by an actual test or computer analysis to withstand a series of accident conditions.
Many states that have legalized marijuana require the use of a seed-to-sale tracking system. This refers to the process of tracking marijuana plants and their byproducts from the planting of the seed through the point of sale. Additionally, producers of hemp are required to maintain certificates of analysis that indicate the hemp has been tested and yielded THC levels no greater than 0.3%. This oversight benefits industry operators and consumers because it increases transparency across all levels of the supply chain and ensures accountability from the cultivators, processors and product manufacturers.
Implementing a nationwide certified cargo manifest for hemp transporters would not only ease the burden on law enforcement but would also accomplish far more efficient enforcement of illegal marijuana trafficking. Tracking hemp plants at all points of the supply chain is cost efficient, and other industries have already demonstrated proof of concept.
As a former DEA Task Force commander, I realize the difficulty law enforcement has in carrying out its mission to enforce the laws of the land when social norms and public acceptance have evolved beyond outdated regulations or morals. The illicit market and criminal smugglers will be the downfall of the gains that legalization efforts have created in the hemp and marijuana industries.
Maybe a certified cargo manifest will help both marijuana and hemp industries — on their own separate paths — thrive moving forward.
Charles Feldmann is a partner at Hoban Law Group and the CEO of Gateway Proven Strategies (GPS.Global). He serves as a trusted adviser for the cannabis industry’s largest and most profitable businesses on an international scale. His full bio can be found at: gps.global/charles-feldmann-ceo-co-founder.
Lilly Lentz is an experienced cannabis industry attorney at Feldmann Nagel Cantafio, PLLC.