Hemp or Marijuana

Are You Growing Hemp or Marijuana?

Are You Growing Hemp or Marijuana?

Hemp that was grown and tested under state pilot programs in previous years, may not be legal in 2019 under the 2018 Agricultural Improvement Act. 

The information contained in this site is provided for informational purposes only and should not be construed as legal advice on any subject matter. You should not act or refrain from acting based on any content included in this site without seeking legal or other professional advice.

According to the Farm Bill, passed in December 2018, hemp, grown under state pilot programs in 2018, is legal to sell and transport out of state.

(Sec. 10114.)

So why are some shipments being seized during transit and producers are struggling to sell their harvest?

Because Federal Law Says it’s Marijuana.

According to the new federal laws, hemp is legal if it was, and is, grown under defined conditions;

1.  Under a permit from a state pilot program (until the USDA defines the federal conditions).

2. Tested and certified to contain less than 0.3% delta-9-tetrahydrocannabinol concentration on a dry weight basis. (SEC. 297A)

The second condition defines the federal legal status of previous and future crops. 

The law also requires states to test post decarboxylation, or similarly reliable testing methods. (SEC. 297B (ii))

Why?

THCA

Cannabinoid forming process of THC
Cannabinoid forming process of delta-9-tetrahydrocannabinol (THC)

THCA (tetrahydrocannabinolic acid) is a phytocannabinoid found in Cannabis plants and is the precursor to THC. THCA doesn’t have the psychoactive properties of THC until it goes under an organic process called decarboxylation. THCA forms during the early growth cycle of the plant. By the time it’s ready to harvest, the acid has started to break down and begins to form THC. 

Decarboxylation converts the majority of the THCA to THC; a process that is accelerated when heated.  

The federal government understands that the THCA will convert to THC naturally, and wants the test to reflect that, even after decarboxylation, the harvest will still be under 0.3% THC.

In the event a truck is stopped in transit, the acting authorities may choose to send the shipment for further testing, using a post decarboxylation method. If the results show THC content over the federal limit of 0.3%, the shipment could be seized and subject to the laws and penalties of marijuana trafficking.

So what does this All mean?

THCA will continue to convert to THC even after harvest. Test methods that do not account for this would create inaccurate results. Even if a crop was approved under a state pilot program in 2018, it still must be in accordance to the federal definition of hemp to sell and transport across state lines. The federal government has the authority over interstate commerce and other federally regulated industries, such as banking. Just because the harvest was approved under a state program, doesn’t mean that it’s legal under the federal law and could open the door for other violations. Fortunately, the 16 out of 20 state pilot programs are now requiring testing using post decarboxylation for the 2019 growing season. Please contact your state to learn more.  

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