Hemp or marijuana? The thin line distinguishing NC government’s regulation of the two.

This story is part of a series called “Hidden Issues,” in which we explore how the School of Government addresses lesser-known issues in local government through its research and advising.

In North Carolina, the regulation of cannabis presents a complex, often conflicting conundrum for local governments and law enforcement. While the state is one of the nation’s most restrictive in the regulation of marijuana, a still illegal substance, the sale and regulation of hemp in North Carolina is quite the opposite. In fact, there is no requirement to provide proof of age to purchase these products.

In 2022, state lawmakers passed permanent legislation that declassified hemp as a controlled substance. The reason? A technical distinction separates the classification of hemp and marijuana based on their respective levels of one particular psychoactive component.

Tetrahydrocannabinol, commonly known as THC, is the primary psychoactive cannabinoid (a group of closely related compounds which include cannabinol and the active constituents of cannabis) extracted from a marijuana plant. It is in its most abundant form in delta-9 THC, making it the major psychoactive substance in cannabis.

“All of that, hemp and marijuana, is all the same plant. It's all cannabis sativa. There's no difference. The only difference is the levels of cannabinoids within them,” explained Phil Dixon, Jr., the School of Government’s Public Defense Education director. “In North Carolina, our definitions of marijuana and hemp are pegged to the concentration of delta-9 THC specifically.”

“Say that’s one cannabinoid in the cannabis sativa plant,” explained Dixon. “If it has more than 0.3 percent delta-9 THC, it's considered illegal marijuana. If it has less than 0.3 percent, it's considered hemp.”

Since the passage of this legislation, a new marketplace has opened for the sale of hemp products in North Carolina, with forms of oils, gummies, topicals, and other variations of the substance being sold across the state.

Presently, there is very little government oversight of hemp products in North Carolina. In addition to not requiring proof of age to purchase or possess the products, there is no requirement for a vendor to hold a special license or registration to sell hemp in North Carolina. Nor is there any standardized quality control. 

This lack of regulation of hemp products creates legal and ethical dilemmas that governments and law enforcement must grapple with moving forward.

Most hemp vendors will not sell to minors, but it is currently legal for minors to possess these products. Dixon thinks most people would find this lack of government regulation surprising, particularly just how easy it is for teenagers or young adults to buy the wrong product. “You don’t really know if what you’re getting is what it says it is,” he added.

Complicating matters, said Dixon, is that there is little easily accessible distinction between hemp and marijuana—making charging for possession of the product an imprecise process.

“Our state crime lab does not do testing that can distinguish legal hemp from illegal marijuana. They can detect the presence of delta-9. In the past, that would be enough to declare the presence of marijuana, and that's how they've always done it,” he said. “That would have been sufficient to warrant a charge. And pre-hemp, that was fine. With legal hemp, that's not fine, and that’s not sufficient.” 

This inability for law enforcement to accurately distinguish between marijuana and hemp, combined with the shifting legalities of cannabis in the state, has led many police departments to conclude that pursuing charges for marijuana possession is no longer in the best interest of public safety.

“That's the case in some municipalities; you are unlikely to get arrested for simple possession of marijuana anymore,” Dixon explained. “And if you do get charged with it, you're not likely to be prosecuted for it in the courts. It's just going to get thrown out.”

In other jurisdictions, and in the jurisdiction under state police, law enforcement can still pursue marijuana charges—creating an inequitable application of the law across North Carolina.

“The enforcement piece depends on where you are when you are charged,” said Dixon. “Maybe here, they're not going to enforce marijuana, but other places they're going to aggressively enforce marijuana.  It is confusing to citizens and residents.”

In trying to navigate these discrepancies, many public officials search for guidance from the School of Government. Dixon, specifically, fields a variety of queries regarding the marijuana loophole. Since the legal passage of hemp in the state, he has drafted blog posts, hosted webinars, and circulated educational resources to provide clarity, where available, to law enforcement seeking to adjudicate the issue.

Still, many inconsistencies remain in the sale and prosecution of cannabis here in North Carolina. In advising on this issue, Dixon has sensed from many stakeholders a strong desire for reform on regulation of the product.

“I do think there’s a broad consensus among the population that we need some sort of uniform regulation on this,” he said.  “People would like for jurisdictions to be consistent on this; for local police agencies, sheriffs, and state police to all be on the same page.” 

In the most recent legislative session, North Carolina lawmakers filed a prospective bill to bring hemp products under more stringent regulation, including banning its sale to anyone under the age of 18, mandating licensing of hemp manufacturers, and requiring further testing of the products. House Bill 563 is currently under consideration by the General Assembly. 

Looking ahead, Dixon believes that lawmakers and state residents alike will have to decide what kind of system for cannabis regulation is sustainable for North Carolina’s future.

Phil Dixon primarily works with public defenders and defense lawyers.

He joined the School of Government in 2017. Previously, he worked as a defense lawyer in eastern North Carolina for over eight years. During that time, he represented criminal defendants and juveniles charged with all types of crimes at the trial level.

He directs the School’s Public Defense Education group.  In collaboration with Indigent Defense Services, he works to provide training and consultation to defenders and other court system actors, as well as to research and write on criminal law and related issues.