When The Smoke Has Cleared: Why We Need a Standardized THC Field Test

“When the smoke has cleared, she said, that’s what she said to me: You’re gonna want a bed to lay your head, and a little sympathy”

In early September, I was at the 2nd annual Southern Hemp Expo in Nashville, TN. I spoke on the need for industrial hemp growers to embrace a whole-plant approach instead of chasing the CBD rush. The event had a lot of highlights, but what’s stuck with me were the smokable hemp pre-rolls being handed out to attendees. A hemp pre-roll looks and smells largely the same as a marijuana pre-roll, and in Tennessee, possession of any amount of marijuana is a misdemeanor offense, punishable by a year in jail. Presently, there’s no standardized field test for law enforcement to determine whether those smokable hemp pre-rolls were marijuana or industrial hemp. And there is almost certainly no way for law enforcement to test these materials in the field, even if there were such standards. 

Smokable hemp flower appears to be the next fad-phase in the evolution of hempsters looking to get rich quick; the quick follow up to CBD consumables.

I question the long-term viability of such products, and the actual market demand, outside of niche, novel one-off purchases. In States like Tennessee and North Carolina, that lack an adult-use, recreational, or a medical marijuana market, smokable hemp flower is a top issue for regulators.

This presents a number of glaring challenges for policymakers, regulators, law enforcement, individual users, and hemp industry entrepreneurs. But that is a topic for another time because my job is to shed light, not to master.

Over the past year, the discrepancy between methodologies for THC testing from state-to-state has played itself out as multiple truck drivers transporting industrial hemp from Oregon to Colorado were arrested and charged in Idaho. There are other notable examples of hemp plant material being seized by law enforcement in a number of other jurisdictions as well. Our law firm has assisted in sorting out these discrepancies, resulting in no criminal action in nearly all circumstances. But most of these seizures had to do with confused law enforcement, who either had no knowledge of the U.S. Farm Bill and its implications for industrial hemp or who were ill-prepared to find a truckload of plant material that looks and smells like hemp’s ‘sinister’ cousin, marijuana. Most importantly, law enforcement does not have a standardized test to determine if the material (found in these over-the-road shipments, or found in the pockets of an individual) constitutes hemp or an illegal, or at least tightly controlled substance, in most jurisdictions – marijuana.    

Even states that have enacted industrial hemp cultivation and processing laws and programs disagree on the method by which to test plant material. Some states only test the flower. Others homogenize the entire plant for testing. Some states only test for delta-9-tetrahydrocannabinol (Δ-9 THC).  Some test for tetrahydrocannabic acid (THCa) as well, and include it in the total THC calculation. Given these discrepancies with flowers in the field, how does one test individual use plant material (i.e. smokable hemp flower), to determine whether or not it is lawful.

Under the 2018 Farm Bill, it is incumbent on the USDA to create a standardized test for plant material to calculate total THC.

But they’re facing the same challenges that states like Colorado wrestled with years ago. As mentioned, how do you count THCa? Do you measure THC in the flowers or the whole plant? How can you measure 0.3 percent THC by “dry weight” in products that don’t have a dry weight?  What constitutes “dry weight” for these purposes? When a farmer harvests and dries the plant material to the historical dry weight standard, the THC levels rise dramatically, with water loss. Are there any answers, or only confusion here?  

In certain states, the law only specifically applies to Δ-9-THC in a smokable product. But this approach appears to lack common sense; at least according to multiple Departments of Agriculture across the country. Their point is that every marijuana plant is going to have low levels of Δ-9-THC; even the best marijuana on the planet has lower levels of Δ-9 THC. However, a marijuana plant does have high levels of THCa, which when heated, or what is known as decarboxylated, converts into Δ-9-THC – which is, of course, the psychotropic ingredient in cannabis. So when it comes to developing a test for total THC, it does not make sense to exclude the calculation of THCa into Δ-9-THC, especially when the product is intentionally designed to be smoked; or at least that is the position of various state governments. The Colorado Department of Agriculture (CDA) has accordingly developed a testing methodology that includes THCa in the total THC content determination, but not on a 1-for-1 basis. The CDA referred to an exciting federal government standard indicating that such is the norm. Is the CDA correct? Does this stymie the industry or does it make law enforcement’s job more difficult?   

Without federal guidance to these questions, possessing, let alone smoking, a hemp flower pre-roll in Tennessee (as just one example) is risky.

But at the end of the day, the fervor around smokable flower seems to miss the point of industrial hemp legalization. Was the Farm Bill intended to create an alternative marijuana-like scenario? Policymakers and legislators alike seem to think that the hemp legalization laws were intended to legalize an agricultural commodity. And that the sustainable way to create a plant-based supply chain and a hemp-based, green-economy in the United States was to legalize the plant, as that’s what our farmers desperately need. That’s what our small business and local economies need. And that’s what we need for our planet.

At the end of the day, testing challenges and standardization is desperately needed, for individuals, for investors, for farmers, and for law enforcement.  As much as we hate to admit it, transparency and government approval is the only thing that will force mainstream America to embrace this plant — for all of its uses.

This originally appeared on Hoban.law.