The hemp industry received a major boost with the passing of the 2018 Farm Bill last December. Consequently, hemp was no longer considered a controlled substance so long as the plant material contains less than 0.3% dry weight tetrahydrocannabinol (THC), which is the main psychoactive compound in cannabis. Since the bill was passed, 34 states have made it legal for farmers to grow hemp and about 16,000 farmers have been licensed to grow the crop. Industry experts forecast the U.S. hemp market to generate more than US$ 25 billion in sales by 2025.

Despite the federal legalization of hemp and the promise of riches, industry stakeholders still face many challenges. One of the more pressing obstacles involves having to deal with an unexpected development concerning the inability of law enforcement bodies across the United States to effectively distinguish between hemp and cannabis.  This has resulted in confusion and tensions between industry players confident they are abiding by the law and police departments doing their job fighting illegal drug trafficking. Recently, New York police arrested Ronen Levy, owner of Green Angel CBD NYC, for supposedly dealing in marijuana. Mr. Levy claims that the 106 pounds of plant material confiscated by NYPD is not marijuana, but rather legalized hemp and he has the lab reports to prove so. The case will soon be heard in court.

Meanwhile, earlier this year the Drug Enforcement Agency publicly asked for proposals for a portable and robust device to be used by their agents in the field to effectively distinguish between marijuana and hemp. This challenge is complicated by the fact that THC levels can vary among individual flowers, even within the same plant, depending on multiple factors, including the plant genetics, climate, soil and cultivation practices. Field tests used by law enforcement officers are not sensitive enough to detect whether the level of THC is above or below 0.3%. This is the case with thin liquid chromatography (TLC) kits, which can detect and identify different cannabinoids but cannot quantify them. When testing a sample of cannabis or cannabis product with a TLC kit, a highly specific coloring reaction will be generated if THC is present. This, however, is not useful for generating an accurate quantification of the THC, critical for determining if the amount detected is above or below the permitted threshold. Drug-sniffing dogs also do not solve the problem since they will alert on both cannabis and hemp.

One technology which may solve the problem is near infrared spectroscopy (NIRS). It uses the light spectrum to assess the chemical contents of a test subject. NIRS is not new. It has been is use for over 50 years in the agricultural industry, while the FDA recognizes it as a well-established method for pharmaceutical analysis and supports its adoption by drug manufacturers. In recent years, NIRS solutions have also made it into the cannabis industry. Several players compete in the space, such as Sage Analytics and GemmaCert. These companies provide NIRS-based solutions to test cannabis potency, specifically to measure the amounts of of THC and CBD. NIRS may also be particularly suitable for law enforcement agents since it can be made available in compact and rugged designs, while the technology is easy to use and produces quick and reliable results. GemmaCert’s CEO, Dr. Guy Setton, said that “we already have a proven solution in the market which can effectively distinguish between hemp and marijuana within minutes.” NIRS-based solutions may yet make things easier for everyone in the hemp industry.