With the passing of the Federal 2018 Farm Bill came the legalization of industrial hemp and hemp derivatives including cannabidiol (“CBD”).

Despite the legality and regulation of this budding new industry, some CBD consumers are facing charges for marijuana possession as law enforcement officials struggle to distinguish legal hemp and CBD from illegal marijuana. Recently, a 69 year old grandmother arrested at Disney World made headlines for her possession of CBD oil used for health ailments. Locally, a Johnston County, NC resident was charged last week with possession of hemp flower used to treat anxiety.

In order to be legal hemp and hemp products (including CBD) must contain less than 0.3% tetrahydrocannabinol (THC) which is the active ingredient in marijuana that creates the feeling of being high. Proponents of hemp and CBD products claim an array of health benefits including treatment for seizures, arthritis, pain-relief, and anxiety all without the impairing effect of THC. CBD is often infused in cosmetic products like lip balms and oils, added to foods (although not permissible per FDA guidelines) like honey, gummies, and even beer, and is even contained in an FDA approved drug used to treat epilepsy.

Unfortunately, individuals using hemp and CBD products may find themselves facing criminal prosecution. Although the use and possession of hemp and CBD is not illegal, law enforcement officials sometimes have a hard time telling the difference between hemp and marijuana which is still illegal in all forms in North Carolina. The confusion is understandable given that hemp flower, which can be smoked by CBD users, looks and even smells like marijuana. Further, even though hemp and CBD products can contain only 0.3% THC, these low levels can still test positive on a police officer’s field test. Hemp users should also be concerned that drug tests may return a positive result on some drug tests.

Because legal hemp and CBD are very new to the market, police officers may not yet be trained on distinguishing the difference between hemp and marijuana. Until that happens we can reasonably expect to see a rise in the number of arrests and prosecution of individuals and businesses that use or sell hemp products. It is in your interest the have a criminal defense attorney experienced in this specific area of the law. If you have been charged with a drug offense, contact Dysart Willis to speak to an attorney who can help.