HEMP OR MARIJUANA: WHAT’S THE DIFFERENCE?

Hemp and marijuana are nearly identical. However, one is an illegal controlled substance while the other is essentially unregulated. Both are derived from the plant Cannabis sativa (L.) and indistinguishable by both sight and odor, whether burned or unburned. Both contain the cannabinoid THC, specifically Delta-9 THC. Currently, no field tests exist to distinguish between the two. Even North Carolina’s Crime Lab–despite being able to detect the presence of Delta-9 THC–cannot quantify its levels to scientifically distinguish the two. For legal purposes, what’s the difference?

The key difference is their Delta-9 THC composition.

What is THC?

Tetrahydrocannabinol (THC) is one of over 113 known cannabinoids found in cannabis sativa (L.), the hemp and marijuana plant. There are five forms of THC found in a cannabis plant: Delta-8; Delta-9; THC-A; THC-V; and THC-P. Delta-9 THC is the primary psychoactive compound found within the plant. However, non-psychoactive forms of THC, such as THC-A, can be converted into Delta-9 THC through exposure to heat, a process known as decarboxylation.

Hemp product containing greater than 0.3% Delta-9 THC is considered marijuana, a Schedule 1 controlled substance under the Federal Controlled Substance Act (CSA) and the North Carolina counterpart.

The Legalization of Hemp

Hemp has been cultivated in the United States for hundreds of years and has long served a variety of industrial purposes. It can be processed into products such as fabric, paper, construction materials, food products, cosmetics, and rope. In 1914, our government used hemp paper to produce $10 bills. In 1942 Henry Ford designed a hemp vehicle that was constructed of hemp plastics and ran entirely on hemp ethanol. However, technological advancements–like the cotton gin–resulted in a decline for hemp’s demand. As a result, less expensive alternatives replaced hemp in many applications leaving the need for hemp all but obsolete.

The hemp industry came to an official end with the enactment of the Marihuana Tax Act of 1938, which categorized hemp as a Schedule I controlled substance. While hemp remained on the list of illegal controlled substances, the Agriculture Improvement Act of 2014 (2014 Farm Bill) legalized its cultivation for research purposes. In 2016, North Carolina quickly passed the Industrial Hemp Pilot Program to regulate hemp production at the state level in accordance with the 2014 Farm Bill. In 2018, revisions were made to the 2014 Farm Bill, removing hemp^[1] and its seeds from the Drug Enforcement Administration’s (DEA) list of illegal controlled substances and allowing the production of hemp in the United States. North Carolina permanently removed “hemp” from the list of its illegal controlled substances in 2022.

The 2018 Farm Bill further established the U.S. Domestic Hemp Production Program, giving the U.S. Department of Agriculture (USDA) authority to regulate hemp production across states and tribal territories. The 2018 Farm Bill allows states and Indian Tribes to apply for primary regulatory authority by submitting a plan to the USDA for approval. NC’s Hemp Pilot Program governed the State’s regulations until 2021, when it was discontinued due to high operational costs and enforcement implementation. Regulations regarding hemp in NC are now governed by the regulations prescribed by the USDA.

Requirements to Grow Hemp in NC

Farmers who wish to grow hemp in NC must:

• Hold and maintain a license issued by the USDA;
• Provide detailed information including gps locations, acreage, greenhouses, buildings, or sites where hemp is produced;
• Sample and test hemp “lots” for Delta-9 THC concentration in accordance with USDA policy;
• Report crop acreage and production sites to the Farm Services Agency (FSA).

USDA licenses to grow hemp are valid for three years and do not renew automatically. No licensee can have a prior felony record within 10 years. Farmers must take samples from a “lot” and test Delta-9 THC concentration levels in accordance with USDA policy. If a sample contains “hot hemp,” hemp testing above 0.3% Delta-9 THC on a dry-weight basis, the entire lot must be disposed of either on-site through common agricultural practices (bush hogging, plowing under, deep burial, and burning) or in accordance with Controlled Substance Act (CSA) and DEA regulations.

Violations of these policies can result in civil and/or criminal penalties.

Do I Need a License to Buy or Sell Hemp?

As of now, there are no specific license requirements to sell or distribute hemp products in North Carolina. Vendors, whether retail or wholesale, do not need a license or permit to sell hemp products. Further, there are no age restrictions on who may buy hemp products. However, it is advisable that vendors obtain a Certificate of Analysis^[2] for the products they sell, as proof of compliance with THC limits.

Numerous changes to hemp regulations are on the horizon. The North Carolina House and Senate have passed House Bill 563, which, once signed into law, will require vendors to be licensed to sell “hemp-derived consumable products” and would prohibit the sale of these products to individuals under the age of 21.

Conclusion

While hemp and marijuana are nearly identical in appearance and chemical composition, their legality hinges on the concentration of Delta-9 THC. This small difference has major implications for the cultivation, sale, and enforcement. As laws governing hemp continue to evolve, it’s important for farmers, vendors, and consumers to stay informed and compliant.

If you have any questions about the laws for legally harvesting, selling, or buying hemp or you have received a civil or criminal violation for the cultivation or possession of hemp, contact The Robinson Law Firm.

^[1] The 2018 Farm Bill defines “hemp” as the plant Cannabis sativa L., and derivatives of cannabis with less than 0.3 percent delta-9-tetrahydrocannabinol (THC) on a dry weight basis.

^[2] COA’s are independent laboratory testings that test and verify the Delta-9 THC concentration in hemp products.

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