Your client is charged with possession of marijuana. They tell you they possessed hemp – not marijuana. Industrial hemp is not visually distinguishable from illicit marijuana. Is that a defense? I would say yes, if your client is a licensed industrial hemp farmer growing industrial hemp in compliance with all regulations. But, if your client is not a licensed grower, the argument is less straightforward.
Cultivation of industrial hemp is now permitted as part of a pilot program in North Carolina. The program is permitted under federal law. The N.C. General Assembly enacted statutes governing industrial hemp and the N.C. Industrial Hemp Commission develops rules for the industry.
Marijuana and industrial hemp are different varieties of the same plant species, Cannabis sativa L. The two species are identical in appearance, but industrial hemp is required to have less than 0.3 percent THC. See Industrial Hemp FAQs. 0.3 percent THC would not cause psychoactive effects if ingested. Marijuana typically contains 3-15% THC. See Industrial Hemp FAQs
The N.C. General Statutes define “marijuana” as all parts of the plant of the genus Cannabis. However, mature stalks and sterilized seeds and their oils are exempted from the statutory definition of “marijuana.” See N.C. Gen. Stat. § 90-87(16). Also, for licensed farmers, cannabis sativa can be possessed and cultivated, so long it contains a delta-9 tetrahydrocannabinol (THC) concentration of not more than three-tenths of one percent (0.3%) on a dry weight basis. N.C. Gen. Stat. § 106-568.51.
Industrial hemp farmers use the stalks and seeds to make a variety of products that are legal for consumers to possess. Statute defines hemp products as “[a]ll products made from industrial hemp, including, but not limited to, cloth, cordage, fiber, food, fuel, paint, paper, particleboard, plastics, seed, seed meal and seed oil for consumption, and certified seed for cultivation if the seeds originate from industrial hemp varieties.” N.C. Gen. Stat. § 106-568.51. Presumably, under state law, it is lawful for consumers to possess these products because they are made from the part of the plant that is exempted from the statutory definition of marijuana; and, therefore both growers and consumers can possess them.
The amount of THC contained in these products is very low and these products are difficult to ingest in large amounts. For example, it would be impossible to ingest enough hemp rope to experience psychoactive effects.
Cannabis sativa leaves with low amounts of THC are a by-product of industrial hemp production. It’s not clear to me whether they have any industrial use in NC, though they can be used to produce cannabidiol (CBD) oil, which is a form of hemp extract which has no psychoactive effects and is used as a treatment for intractable epilepsy. Like the stalks and seeds, the leaves contain very low amounts of THC; and, like the stalks and seeds, it would not be possible to get high from ingesting the leaves.
Though the leaves of low-THC industrial hemp does not cause any psychoactive effect, they are not exempted from the statutory definition of marijuana and cannot be legally possessed by anyone other than a licensed hemp grower. See N.C. Gen. Stat. § 90-87(16). The only other exemption for a hemp product in the General Statues is an exemption for use or possession of hemp extract for certain medical purposes. See N.C. Gen. Stat. § 90-94.1.
So, if the leaves do not pose a public health threat, why is it illegal to possess them? One could argue that leaves that are visually identical to marijuana could be sold as a counterfeit controlled substance, so there is a public policy interest in their possession remaining illegal. However, given that these leaves are incapable of causing any psychoactive effects when ingested or consumed, from a public health perspective, it seems that possessing the leaves is as innocuous as possessing hemp rope. Given that low-THC Cannabis sativa leaves are not impairing or psychoactive, one could argue that a possession charge should be dismissed in the interest of justice. If the person is charged with the Class I felony for possession of marijuana, counsel could argue that the defendant should be allowed to plead to the Class 1 misdemeanor of tampering with an industrial hemp crop established by N.C. Gen. Stat. § 106-568.57 rather than the felony.
I’m interested to hear from readers about how courts have handled cases involving possession of hemp leaves as this is a new topic for me given the recent introduction of industrial hemp in North Carolina.
2018 is the second harvest year for industrial hemp. Last year’s crop produced seeds that may very well have been carried by birds to areas outside land where hemp could be legally raised. Your client may be charged with raising marijuana (trafficking marijuana) when in fact the plants are hemp which volunteered. Unless there are signs of cultivation such as weeds cleared around plants or fertilizer the plants you client denies raising might very well have been planted by birds or seeds which escaped agricultural processing.
A field near my office which was used to grow hemp in 2017 was not replanted this year and yet throughout the field hemp plants sprouted up on their own.