Hemp Legalization Complicates Marijuana Prosecutions In Texas

By Kelly Burch 07/24/19

There are only two accredited labs in the state that can determine the difference between hemp and marijuana.

person holding handful of hemp seeds

As more states legalize hemp, prosecutors are dropping marijuana-related cases because of difficulties distinguishing it from marijuana. 

“Everybody is struggling with this,” Peter Stout told The New York Times. Stout is the president of the Houston Forensic Science Center, a lab that does analysis for law enforcement agencies including the Houston Police Department. 

What Is The Difference?

Hemp and marijuana are different strains of the cannabis sativa plant. Under federal law, hemp was legalized as part of the 2018 Farm Bill. The bill described hemp as a cannabis plant containing less than 0.3% THC, the active ingredient in marijuana that gets people high. Many state laws align with this definition. 

While that distinction is clear legislatively, it remains difficult to determine the difference between marijuana and hemp both by physical appearance and in court. 

"It's not different at all," Bob Gualtieri, sheriff in Florida’s Pinellas County, told the Tampa Bay Times. "I wish it was pink. That would make it easier.”

In Texas, many prosecutors have dropped or declined to prosecute cases involving marijuana because there are only two labs that are accredited with the state that can determine the difference between marijuana and hemp. Prosecutors who cover Houston, Austin and San Antonio have all stopped pursuing cannabis crimes. 

Republican lawmakers in Texas recently sent a letter to prosecutors, chastising them for dropping cannabis cases. 

Understanding The Law

“Some of you have recently dismissed marijuana possession cases or announced you will not prosecute misdemeanor marijuana possession cases without a lab test,” the letter reads. “Marijuana has not been decriminalized in Texas, and these actions demonstrate a misunderstanding of how H.B. 1325 works.”

The letter goes on to say that lab tests are not required to prove that a substance is marijuana, not hemp. 

“Failing to enforce marijuana laws cannot be blamed on legislation that did not decriminalize marijuana in Texas,” the letter reads. 

However, Harris County District Attorney Kim Ogg said that lab testing “has long been required” to prosecute marijuana cases. 

Texas lawyer Brandon Ball agreed. “The law is constantly changing on what makes something illegal, based on its chemical makeup,” he said. “It’s important that if someone is charged with something, the test matches what they’re charged with.”

Even the Drug Enforcement Administration has trouble distinguishing between hemp and marijuana. Earlier this year, the agency put out a call for a device that could properly identify the substance out in the field.

Seeing a business opportunity, companies are scrambling to make a fast and affordable test to distinguish between the two. Syndicate Alliance is one company in the process of creating a field test kit for determining whether a substance is marijuana or hemp. John Waldheim, COO and co-founder of the company, said that he expects to distribute 30,000 kits before the end of the summer. 

He said, "It's like an overnight sensation."

Please read our comment policy. - The Fix
Kelly Burch Contrib.jpg

Kelly Burch writes about addiction and mental health issues, particularly as they affect families. Follow her on TwitterFacebook, and LinkedIn.