Hemp poses legal conundrum for Florida law enforcement

TALLAHASSEE, Fla. – Did the Florida Legislature inadvertently legalize marijuana when it passed a bill earlier this year to take advantage of a 2018 federal law that legalized industrial hemp as an agricultural product? 

Not technically, but state attorneys and law enforcement agencies throughout the state are facing a difficult question: How to tell the difference between the two?

State and federal law defines “industrial hemp” as cannabis that has 0.3 percent or less tetrahydrocannabinol, or THC; cannabis plants that have more than that amount of euphoria-inducing THC are marijuana.

But take a simple gummy bear for example. Is it a piece of candy, a legal hemp product infused with CBD or an illegal high-THC marijuana edible? 

The State Attorney of Florida’s 2nd Judicial Circuit Jack Campbell said old methods of identifying marijuana, such smell or appearance, can’t distinguish marijuana from hemp. 

“It's the same thing as if somebody looked at a glass of alcohol. You might be able to smell and tell that there's alcohol, but you couldn't look or smell and say what the proof of it is,” Campbell said.

There’s also no field test that can make the distinction.

Florida lawmakers authorized a statewide hemp program and gave oversight of the crop to Agriculture Commissioner Nikki Fried, whose office said a third-party company is currently developing a test that would distinguish between illegal marijuana and hemp.

If and when a test is created, however, Campbell said its effectiveness will have to be proven in court, which can be a lengthy and expensive process.

“I have to be able to show that this test works, that it is scientifically validated,” Campbell said.

Until a test is available, Campbell predicts the legal conundrum will likely be handled differently throughout the state.

“I think you're going to have some agencies that are going to continue to arrest and seize. I think you are going to have some that are going to be concerned about possible wrongful arrest,” Campbell said.

Ultimately, Campbell said, he believes a solution will be worked out, but the question of when and how people can protect themselves in the meantime is not clear for the time being.