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Hemp is legal in North Carolina, but marijuana isn’t. The result for residents? It’s complicated.
Experts say the state’s legal system has yet to recognize the paradigm shift that hemp legalization has created. And state legislators have not done anything to fix the problems that legalizing hemp without decriminalizing marijuana created.
As Michael Hewlett reported in a recent feature story, this has led to a boom in legal hemp-derived products that are very similar to their illegal marijuana counterparts–and created a legal morass now being challenged in court.
Here’s what you need to know:
When did hemp become legal in NC?
In 2018, Congress passed a federal farm bill that legalized hemp-growing across the country, positioned as a way for farmers to take advantage of an industry that was expected to grow to $18.1 billion globally in the coming decade.
The following year, North Carolina legislators proposed a bill that would bring the state in line with federal law. The General Assembly permanently declassified hemp as a controlled substance in 2022.
What’s the difference between hemp and marijuana?
Both hemp and marijuana are from the same plant species, Cannabis sativa.
The psychoactive ingredient in marijuana is delta-9-tetrahydrocannabinol, or THC. It is what gets people high. Under federal and state law, marijuana is defined as cannabis having 0.3 percent delta-9-THC. Anything lower than that is legal.
Hemp has low levels of THC and high levels of cannabidiol, or CBD, which is not psychoactive and is often used to treat medical conditions such as epilepsy.
Are hemp-infused products available in NC?
Yes. The emergence of hemp-infused products such as delta-8 and delta-10 has made things even more complicated. Those products are different cannabinoids that have similar psychoactive effects as delta-9-THC. But they are considered legal and there are few regulations on who buys or sells those products.
THC-A, which stands for tetrahydrocannabinolic acid, is another naturally occurring chemical abundant in cannabis that is sold in stores as flowers and pre-rolled cigarettes. Heat, however, changes its chemical composition into delta-9-THC through a process called decarboxylation.
People can smoke or vape those hemp products, and they look and smell just like marijuana.
Can NC law enforcement tell the difference?
In 2020, law-enforcement leaders warned that many hemp products look and smell just like marijuana. They’d urged lawmakers to explicitly ban smokable hemp, which they did not.
The State Bureau of Investigation even issued a five-page memo warning about the very scenario playing out today: “The unintended consequence upon passage of this bill is that marijuana will be legalized in NC because law enforcement cannot distinguish between hemp and marijuana and prosecutors could not prove the difference in court.”
The Smell Test
Police could once use the smell of marijuana as probable cause to search a vehicle. Now that hemp is legal, the system faces a quandary.
How is this uncertainty playing out in the NC court system?
Several cases before the state Court of Appeals raise the question of whether law enforcement can still use the odor of marijuana as probable cause to search vehicles, homes, or businesses. On April 16, the Court of Appeals ruled in State v. Dobson that the odor of marijuana can still be used as probable cause.
In that case, Tyron Dobson was arrested in January 2021 after Greensboro police searched the vehicle he was in after claiming they’d smelled a faint odor of marijuana. The court ruled that police officers had other reasons, other than smell, to justify the search.