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Georgia Hemp Farming Act Opens Georgia Up to CBDs and Confusion

Posted by Sean A. Black | Jun 24, 2019 | 0 Comments

On May 10, 2019, Governor Kemp signed into law the Georgia Hemp Farming Act.  This will allow the growing, processing, sale and possession of hemp and hemp products in Georgia, bringing Georgia in line with the federal agriculture bill.  There are important limitations on hemp and hemp products.  The growing of hemp will be highly regulated, including provision for destruction of non-conforming crops.

What Are Hemp and Hemp Products?

The Act provides new statutory definitions for hemp and hemp products.  They will be codified at OCGA § 2-23-1.

'Hemp' means the Cannabis sativa L. plant and any part of such plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with the federally defined THC level for hemp or a lower level.

'Hemp products' means all products with the federally defined THC level for hemp derived from, or made by, processing hemp plants or plant parts that are prepared in a form available for legal commercial sale, but not including food products infused with THC unless approved by the United States Food and Drug Administration.

So, marijuana and hemp are both from the Cannabis sativa plant.  The big difference is that of THC concentration level.  Hemp is a strain of Cannabis sativa which has a very low THC level.  Marijuana has higher THC levels.  The federal level is a delta-9-THC concentration of not more than 0.3 percent on a dry weight basis.  The Georgia statutory definition will adjust to the federal level if the federal level is increased from 0.3 percent.

Changes to Definition of Marijuana

Georgia law has updated the definition of marijuana in OCGA § 16-13-21:

'Marijuana' means all parts of the plant of the genus Cannabis, whether growing or not, the seeds thereof, the resin extracted from any part of such plant, and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds, or resin;, but shall not include samples as described in subparagraph (P) of paragraph (3) of Code Section 16-13-25; and shall not include the completely defoliated mature stalks of such plant, fiber produced from such stalks, oil, or cake, or the completely sterilized samples of seeds of the plant which are incapable of germination; and shall not include hemp or hemp products as such terms are defined in Code Section 2-23-3.

The important distinction there is that hemp and hemp products are now excluded from the definition of marijuana.

Changes to Definition of THC

Georgia law has included THC in Schedule I but excluded from the definition, substances qualifying as marijuana, that is plant material.  So, resins and oils containing THC could be prosecuted as felonies relating to a Schedule I controlled substance.

The new definition under OCGA § 16-13-25 will exclude THC when found in hemp and hemp products.

Tetrahydrocannabinol, tetrahydrocannabinolic acid, or a combination of tetrahydrocannabinol and tetrahydrocannabinolic acid which does not contain plant material exhibiting the external morphological features of the plant of the genus Cannabis, but not including such substance when found in hemp or hemp products as such terms are defined in Code Section 2-23-3.

Unprocessed Hemp Flowers and Leaves Are Illegal to Sell

It will be illegal for a licensee or permittee to offer sale the unprocessed flower of leaves of the illegal substance. OCGA § 2-23-4 (a)(7) 

Unprocessed Hemp Flowers are Not Illegal to Possess

While no one will be authorized to sell hemp flowers or leaves at retail, it is not evident that there is any prohibition against possession of hemp flowers or leaves.  This is important because the appearance of hemp flowers and leaves are not different than marijuana flowers and leaves.

The Recipe for Confusion

Legalization of hemp and hemp products means that there are legal and illegal products present in the state of Georgia which both contain THC.  The question is how law enforcement will determine which substances are legal and which are illegal.

Appearance of Plant Material

The appearance of hemp and marijuana should be substantially the same.  After all, they are the same plant, differing only in THC concentration, which would not change the physical, or morphological, characteristics of the plant material.

It is impossible to distinguish with the naked eye or with a microscope between marijuana and hemp plant material.  How, then, will officers know whether they are seeing hemp or marijuana.  Even if the person in possession believes that it is marijuana, how does an officer know for sure without testing the THC concentration of the material.  At the present time, there is no reliable test for determining THC content percentage without laboratory testing.  

Odor of Hemp and Marijuana

Patrol officers are often trained to identify the odor or raw, burning and burnt marijuana.  It appears that hemp and marijuana smell substantially the same, as might be expected, since they are the same plant, just different strains.  

How then does an officer know that he or she is smelling marijuana or hemp?

In addition, trained canines, whose noses are many times more sensitive than human noses, are unable to distinguish between marijuana and hemp.  They will alert to either.  

One factor in some cases may be burnt material.  Since hemp does not contain a significant percentage of THC, there is really no reason for anyone to smoke it.  It will not get you high.

Processed Materials

Both marijuana and hemp get processed into many different forms:  waxes, oils, resins, edible materials (cookies, brownies, lollipops, candies, etc.).  In the absence of packaging which identifies the claimed THC content percentage, law enforcement cannot be certain whether the plant material in the goodies is hemp or marijuana.  Will this support a probable cause standard?

Unfortunately, I have encountered a number of cases lately where people purchase THC containing cookies, vape capsules, etc., and leave the packaging intact.  This makes for an easier case for law enforcement.  

Lack of Field Tests

At the present time, there are no field tests which can distinguish between hemp and marijuana.  In March of 2019, the United States DEA requested information from any private company which claims to have the technology for a field test capable of making that distinction. The tests currently used by law enforcement cannot make that distinction

Georgia's Current Marijuana Testing Program Is Inadequate

Georgia's state crime lab currently offers to certify law enforcement officers in marijuana identification.  This program has been in place for more than a decade.  Officers are trained to examine the material under a microscope and to make use of two reagent tests.  Microscopic examination cannot differentiate between hemp and marijuana.  Neither of the reagent tests can distinguish between hemp and marijuana.  At best, Georgia marijuana examiners may be able to say that the material is cannabis but not be able to tell whether it is hemp or marijuana.  Unlike neighboring South Carolina, Georgia has not yet discontinued its marijuana examination program.  All suspected marijuana or suspected THC products will now need to be tested by the state crime lab.

While Congress and Some States Have Legalized Hemp, Others Are Lagging Behind

Not all states have legalized hemp and hemp products.  Congressional action leaves it to the individual states how to handle the issue while allowing for the movement of hemp and hemp products in interstate commerce.  This is intended to be a huge national market for these products.  Because of the piecemeal approach, truckers have been detained and arrested and had large loads of hemp impounded in states like Idaho and Oklahoma.  While these issues should be resolved within a few months, it points to the difficulties.  One of the Oklahoma arrests involved over $1 million in product and was accompanied by state certifications of load as hemp.  But because the field test was positive for THC, the load was impounded and everyone with a connection to the truck load was arrested.

About the Author

Sean A. Black

Sean A. Black is a 1992 graduate of the Emory University School of Law. He has been in private practice in Toccoa, Georgia since June 1, 1992.

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