Hemp Misclassification Inadvertently Decriminalizes Marijuana in Texas


The 2018 Farm Bill released hemp from its status as a Schedule I controlled substance. Shortly after, Texas passed H.B. 1325, which officially legalized hemp.

However, the new definition of “hemp” created a slew of new problems for states like Texas, where marijuana is still very much illegal.

GQ Magazine reports that hemp legalization placed Texas in a position where marijuana prosecution is next to impossible.

Fortunately, the situation is a case of simple misclassification and can easily be remedied with some legal tweaks.


No Way to Prosecute


According to GQ Magazine, H.B. 1325 backfired horribly. They explain:


“…in a landmark addition to the annals of poorly-drafted legislation with unintended consequences…the bill has effectively decriminalized weed in the state, forcing many prosecutors to drop low-level marijuana case[s] that they fear they can’t prove in court any longer.”


The main problem here is that, due to hemp being defined by its THC content, law enforcement now has to test any marijuana confiscated from defendants. Unfortunately, they do not have the means to do so.

Consequently, anyone caught with marijuana can simply have their lawyer claim it is hemp, giving prosecutors no other choice but to drop the charges.


Another Mistake


The government’s first mistake was to lump hemp and marijuana together as controlled substances by banning “cannabis” altogether. They corrected this, but in doing so, made another, equally confusing mistake. But rather than cause more arrests, this misinterpretation is making prosecution nearly impossible.

Although the law now draws a line separating hemp and marijuana, the line itself is completely misplaced. U.S. law classifies “hemp” as any cannabis plant containing 0.3% THC or less, while anything higher is marijuana.

But any botanist (or layperson with a basic understanding of cannabis classification) knows that using that as a measurement is simply incorrect.

Hemp and marijuana are not scientifically different based on THC levels. They are literally two different species under the cannabis genus. Marijuana is known as cannabis sativa, while hemp’s scientific name is cannabis sativa L. They are two completely different plants and easily differentiated by the naked eye.

For instance, indica strains are dense and bushy, reaching heights of about six feet. Their leaves are noticeably wider than sativas.

Sativa strains are not as dense and have thinner, longer leaves. They are also taller, reaching heights of up to 20 feet. These strains also need a warm climate in order to thrive outdoors, so anyone illegally growing sativas would need to use a greenhouse.

Hybrid marijuana strains often show a mix of both physical characteristics, but are still easily distinguishable from industrial hemp.

Unlike indica and sativa plants, hemp can grow outdoors in temperate climates, growing as tall as 16 feet. Their leaves are also widely dispersed compared to marijuana.

But the most telling feature is the CBD source. Marijuana cannabinoids come from the flowers, which are cured and dried before being smoked or processed for oils.

CBD from industrial hemp is extracted from the stalks and stems of the plant.

The bottom line is that law enforcement does not need their own testing equipment. The differences are plain as day. Unfortunately, putting the legal definition of “hemp” based on THC content means that an indica or sativa marijuana strain could pass for hemp, when this is simply not the case.


A Simple Solution


In order to solve this problem, lawmakers simply need to define hemp in accordance with its classification, not THC content. Then, they can ensure than any industrial hemp produced remains within the legal 0.3% THC threshold.

The other option would be to simply decriminalize marijuana in Texas, saving a lot of effort and confusion.

A final option would be to look externally for testing. Law enforcement may not have the tools to test THC levels, but licensed producers do. They need to if they wish to provide strain potency to retailers.


WeedAdvisor’s Desire for Legitimate Cannabis Reform


It is safe to say that many might find the situation in Texas rather amusing, but the issue is not isolated to just that state. Any state who keeps marijuana illegal will likely hit the same roadblocks.

Some may think this will force the hands of legislators to simply concede and decriminalize marijuana, but the reality is that some states – like Texas – do not even want to consider such a notion.

Clearly, lawmakers need to revisit reforms if they want to avoid complications like the ones faced by Texas and other illegal cannabis states.

WeedAdvisor, however, does not want to see this kind of turmoil. As much as we advocate for legalization (or at the very least, decriminalization), we feel it needs to occur through popular and political support.

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