by David B. Bush
Everyone knows that marijuana on the market today is far more potent than it was in years past. The Drug Enforcement Administration (DEA) and academic researchers report that the average concentration of Δ-9 tetrahydrocannabinol (THC) in marijuana has increased from an average of just 4% by dry weight in 1995 to 12% in 2014. Average potency for commercially produced marijuana in Colorado recently reached 17%, with many strains topping 25% or even higher. Popular media is replete with rumblings that marijuana may be too potent, which creates new potential health risks and poses a threat to legitimate cannabis business.
Lost in all the hype over marijuana potency is the legal threshold for defining marijuana as distinct from industrial hemp, which has not changed. The federal Agricultural Act of 2014 defines that threshold as 0.3% THC by dry weight. Every state but one that legalized industrial hemp in some form has adopted the same legal limit. Only West Virginia—for reasons unknown—established a THC threshold for industrial hemp of 1.0%.
Colorado is a prime example. The definition of industrial hemp is no more than 0.3% THC by dry weight. Not only are marijuana and industrial hemp legally recognized as separate and distinct varieties of cannabis, but they are regulated by entirely different state agencies. The Department of Revenue oversees the marijuana industry in Colorado, while industrial hemp is regulated by the Department of Agriculture. Most states that reformed their cannabis laws have done something similar.
Anyone in Colorado can grow industrial hemp, but their crop must undergo rigorous laboratory testing to demonstrate that the upper leaves and flowers (where trichomes are most abundant and cannabinoid concentrations naturally are highest) do not exceed the legal threshold for THC. A crop that tests above 0.3% THC is legally classified as marijuana and must be destroyed. No part of a cannabis plant with THC exceeding 0.3% can be saved, used or placed in the stream of commerce—not even the parts of the plant such as the stalks and oil pressed from seeds, which could never get anybody high no matter how potent the THC numbers might register in the flowers and upper leaves
During the 2016 growing season in Colorado, hundreds of acres of economically valuable industrial hemp had to be destroyed because it tested “hot” for THC. Nobody was growing marijuana, or even trying to do so. The vast majority of failed THC tests demonstrated that the crops had concentrations of THC above the legal limit but still so low—generally in the range of 0.4–0.5%—that the plants had no value whatsoever as marijuana. Such low concentrations of THC would have been laughable even decades ago, when the quality of marijuana on the illicit market was so poor that it took constant toking on a soggy joint to get a buzz. Even in the days when marketable bootleg marijuana had THC concentrations below 5%, it was still stronger by an order of magnitude than anything tested and rejected these days in the modern hemp field.
Our evolving legal cannabis culture in the US has created a mountain of trash comprised of industrial hemp plants that unfortunately tested a few ticks off a fraction of a percentage point above the legal limit. Because the law classifies them as marijuana instead of industrial hemp, the crops cannot be treated as ordinary agricultural commodities. They are orphans, based on a legal technicality that serves no purpose. The waste is tragic.
I own clothing whose label states that it was made with hemp fiber. My business cards bear a printed message on the back announcing that they contain 25% hemp. I’ve seen and purchased plenty of tinctures and oils, salves, lotions and dermal patches containing blends of non-psychoactive cannabinoid isolates. In my basement sits a demonstration car door panel made with hemp composites. I don’t know and don’t care whether the products were made from plants that contained THC concentrations of 0.3% or 0.35% or even 30%. It does not matter. The goods are hemp products because they were made from fibers, pulp, oils and other compounds that have no business being stuck in a joint and lit on fire. All I can really tell you about them is that they were made from the cannabis plant. Whether the law chooses to call the plant industrial hemp or marijuana should make no difference. The products are the same.
The legal distinction between industrial hemp and marijuana is pointless. It is silly and self-destructive. But the law has the 0.3% THC threshold in a vice grip that few think has any chance of being broken. Now that we have created this mess, the question is: What do we do about it?
Why not accept that much of the cannabis grown around the world isn’t industrial hemp or marijuana but, for all practical purposes, is industrial marijuana? Such cannabis may be too high in THC to meet the exacting threshold to qualify legally as industrial hemp, but it also may be far too weak to ever compete in the market for marijuana with all its skyrocketing potency. Perhaps the stuff still legally qualifies as marijuana, but it is more suited to make industrial hemp products.
We should stop throwing away perfectly good cannabis plants simply because the law calls them marijuana but the market has no use for them as a recreational drug. The time has come for our body politic to accept that there is a place in our economy for industrial marijuana.
David B. Bush, Esq. is a practicing attorney in the firm of David B. Bush, L.L.C. dba DavidLaw, a business law practice dedicated to furthering the successful development of industrial hemp in Colorado and throughout the United States. His web page is www.davidlawcolorado.com and he may be reached at firstname.lastname@example.org.