North Carolina began regulating pilot hemp production in 2015 pursuant to the Federal Agricultural Act of 2014. Two years later temporary rules were issued by the N.C. Industrial Hemp Commission and a limited number of licenses for industrial hemp fields were granted to qualified farmers and research institutes.
In December of 2018, the Federal Agricultural Improvement Act of 2018 deemed industrial hemp at or below .3% THC to be separate and distinct from marijuana and thus not a federally illegal controlled substance, thereby opening state regulation for private sector hemp production.
In March of 2019, North Carolina declared that its state and citizens should be “at the forefront of the hemp industry” and proposed Senate Bill 315. The original filing broadly defined “hemp products” as any product derived from or made by processing hemp plants that were within the federally defined .3% THC level. S.B. 315 seemed to garnish bipartisan support and was viewed as a positive step forward by the agricultural community. That is until revisions of S.B. 315 begin in June of 2019.
Within the second revision of S.B. 315 in June 2019, the N.C. legislatures excluded “smokable hemp” from the definition of “hemp products.” By early to mid-July, revisions placed smokable hemp within the definition of “marijuana,” while concurrently proposed amendments to S.B. 352, N.C.’s Controlled Substances Act, excluded smokable hemp from the definition of hemp products, and added smokable hemp to the definition of marijuana.
The regulation of smokable hemp began a topic of heated debate as N.C. law enforcement agencies voiced concerns to the legislature that there was an absolute lack of testing available to distinguish between smokable hemp and marijuana. Essentially, the similarities of the plants themselves, smell, look, feel, and taste acted as a bar to the old adage of sniff and stop probable cause. There rose a fear that without a ban, marijuana would be accidentally legalized.
The fear was not unsubstantiated; in the summer months of June and July 2019, Florida, Texas, and Ohio enacted laws legalizing hemp production without any specific regulation of smokable hemp. Within the following months, state attorneys in various counties across the states announced that they were unable to prosecute misdemeanor marijuana possession due to the high cost of private testing to determine the THC percentage of seized greens.
Throughout the revisions, N.C. legislatures carved out a plan to study if the prohibition on sale of smokable hemp should be repealed, but only contingent upon an approved immediate testing method for law enforcement to determine if a plant was indeed legal hemp or illegal marijuana.
Public outcry against the ban on smokable hemp ensued with arguments that due to the attachment of civil and criminal penalties to the manufacturing, processing, and sale of smokable hemp, it precluded any hopes farmers had for securing investors and insurance for hemp fields, and the ban prejudiced N.C. farmers as other states were not similarly regulating the lucrative smokable market.
N.C. legislature attempted to reach a delicate balance between the enraged agricultural community of approximately 1,300 hemp farmers and concerns of law enforcement agencies. The most recent August 2019 revisions mandates that suppression of evidence gathered by law enforcement from a stop based on probable cause cannot be precluded solely based upon later determination that the substance at issue was not a controlled substance. However, the latest revision also places smokable hemp in the definition of hemp products for a limited timeframe – until May 1, 2020 – to allow farmers to yield the profits of Spring 2019 crops and also provides for a “not in my backyard” exception for the sale of smokable hemp to non-N.C. individuals in jurisdictions that allow for smokable hemp. S.B. 315, Edition 10, passed its second reading on August 21, 2019, at 63 Ayes to 48 Nays. The proposed bill is awaiting its third and final reading, at which time additional debate can be presented before the Senate for consideration.