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Mislabeling of Marijuana Products Is a National Problem

by Kevin W. Bliss

A recent study showed that many vendors of hemp products legal under the Agriculture Improvement Act of 2018, commonly known as the 2018 Farm Bill, actually carry a chemical makeup of higher than 0.3% of tetrahydrocannabinol (“THC”), classifying it as marijuana, a Schedule I controlled substance.

Although hemp and marijuana are variations of the Cannabis sativa plant, they differentiate from each other in that hemp contains high amounts of cannabidiol (“CBD”) and low amounts of THC, while marijuana contains high amounts of THC with low amounts of CBD. Products containing any amount of THC were classified as a Schedule I controlled substance and designated as illegal with the passing of the Federal Comprehensive Drug Abuse and Prevention Control Act of 1970. The Farm Bill paved the way for a variety of those products made from hemp, but not marijuana, to be sold to the public.

Many of these products are sold by companies with the declarative statement that they use only hemp products with 0.3% or less THC as defined by law. Yet when the National Institute of Standards Technology (“NIST”) sampled 53 hemp products from five separate online vendors, it found that 49 of those products were mislabeled, qualifying instead as marijuana products with greater than 0.3% THC (although still less than 1% total).

The NIST was founded by the National Institute of Justice to develop analytical and validation methods to determine if a sample product qualified as hemp or marijuana under the new federal law. The NIST uses liquid chromatography and photodiode array detection to measure the amount of THC in an extracted sample. The results are displayed as chromatograms on a chart with amplitude peaks of embodied chemicals which can then be compared to known standards.

The mislabeling of companies’ products as hemp when they actually qualify as marijuana can have severe consequences, legal and otherwise. As of February 2022, medicinal marijuana was legal in 37 states and the District of Columbia. Recreational marijuana was legal in 19 states and the District of Columbia. Thirteen states still did not allow the use of marijuana in any given form. Yet, by the new federal law, hemp is now legal in all 50 states and the District of Columbia.

Police departments can struggle with the ability to analyze samples to determine whether they should be classified as hemp or marijuana. Field tests currently exist to determine if THC is present in a sample, but they cannot ascertain the total amount.

Possession of a product thought to be hemp but classified as marijuana can be a felony charge. And if the person in possession of such a product is on probation or parole, then the problem becomes exacerbated.

For this very reason, a report detailing the situation was released in Police Chief, a publication of the International Association of Chiefs of Police. Recommendations were made to increase local law enforcement’s awareness of the potential for mislabeling and its ramifications, to financially provide for more qualified forensic laboratories and comprehensive samplings to ensure that products meet accurate hemp classifications, and develop governmental policies for the better handling of potential possession of mislabeled hemp products. 

Source: National Institute of Justice

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