Hemp has been legal to grow in Pennsylvania for more than a year, but buyers of certain hemp products still risk prosecution because of an oversight by lawmakers.
Those risks were highlighted on Feb. 19 when Jason Grossman, an Allentown hemp business owner, pleaded no contest to drug possession charges.
Last May, State Police seized Grossman’s inventory containing CBD, a hemp extract thought to have medical benefits. Field testing of the products picked up THC, the psychoactive component in hemp’s cousin marijuana.
The mere presence of THC is not surprising. The chemical occurs naturally in cannabis plants, though the concentrations in hemp are scant.
The 2018 Farm Bill, which legalized commercial hemp production and took the crop off the federal controlled substances list, allows hemp to contain less than 0.3% THC.
Though Pennsylvania too has legalized the crop, state lawmakers failed to update the state Controlled Substances, Drugs, Device and Cosmetic Act.
As a result, a zero-tolerance policy toward THC remains on the books — even though CBD products like Grossman’s that might violate that rule have become widely available at convenience stores and specialty shops.
Hemp farmers and processors appear to be fairly safe from prosecution because they must be permitted by the state Ag Department. For people who want to buy from permit holders, the prospects are less clear.
“There’s an unnecessary risk involved for retailers, wholesalers and consumers,” said Erica Stark, executive director of the Pennsylvania Hemp Industry Council.
The state-level technicality shouldn’t matter, according to Grossman’s attorney, James Heidecker, because the Farm Bill was carefully written to pre-empt state laws and allow interstate commerce in hemp.
But hemp advocates aren’t taking any chances, especially after Grossman was fined $5,000 and court costs.
The Hemp Industry Council is pushing Senate Bill 936, which would remove hemp from the state Controlled Substances Act. The bill was referred to the Judiciary Committee in November.
“It is vital that we ensure our statutes don’t get in the way of economic development,” said bill sponsor Sen. Tim Kearney, D-Swarthmore.
Stark believes the bill should be able to get momentum. After lawmakers voted overwhelmingly to allow hemp production, “there’s no reason not to support it now,” she said.
The industry is already taking off.
Over 300 permitted farmers planted 4,000 acres of hemp last year. Six of those farmers were in Lehigh County, where the Grossman case occurred.
The state created a grant program last summer for specialty crops, including hemp. And the Ag Department hosted a hemp summit last October that catered to all segments of the industry, including retailers. Lancaster Farming was the media partner for the event.
If the state’s Controlled Substances Act is updated, policing practices may need to change.
Hemp, after all, smells and looks like marijuana, but drug-sniffing dogs and the standard police field test identify only the presence, not the concentration, of THC.
Before hemp was legalized, the smell of weed generally satisfied the burden of probable cause for State Police to search a vehicle, Heidecker said.
It’s not clear if that practice will hold up in the era of legal hemp, not to mention medical marijuana.
In August 2019, a Lehigh County judge ruled that state troopers should not have searched a car that smelled of marijuana after the driver produced his medical marijuana card, according to Fox 43 News.
One of Heidecker’s law partners represented the defendant. Jim Martin, the Lehigh district attorney, has appealed the case to the Superior Court.
The state District Attorneys Association did not respond to questions about the guidance it gives about hemp.
On the day that Jason Grossman pleaded no contest to drug possession, related charges against his father, Kenneth, were dropped.
Martin said the father was just a peripheral figure.
“We took a plea from the son, who we determined was primarily responsible in the case,” he said.
Martin described the Grossmans’ products as hemp, but said the men were not farmers, and he pointed to the current language of the state Controlled Substances Act.
Heidecker said Jason may have felt guilty about involving his father, who initially doubted the legality of CBD.
The Grossmans bought their products from an Oregon distributor and sold them to local stores and gas stations, as well as to out-of-state contacts, according to court records.
The Grossmans’ products had lab paperwork showing they were below the legal limit for THC, according to Heidecker and court documents.
Trooper Jordan Sonka, the arresting officer, said in a court hearing that he couldn’t assess the accuracy of those documents.
Both Grossmans have prior drug possession charges, according to the affidavit of probable cause against Kenneth.
Heidecker said he was pleased with the decision to drop the charges against Kenneth Grossman, who spent time in jail after his arrest.
A judgment against Kenneth, he said, would have hurt farmers producing a legal crop and would have been hard to square with the open proliferation of hemp products in the state. A CBD emporium even operates close to the Lehigh County Courthouse.
“You don’t have to go far to find it,” Heidecker said.
Berks County hemp advocate Geoff Whaling is also pleased that Kenneth Grossman’s charges were dropped, but he worries the hemp industry is still at risk.
Whaling, who was set to be a witness in the case, is the chairman of the National Hemp Association and president of the Pennsylvania Hemp Industry Council.
After Kenneth’s charges were dropped, Whaling said he got a few minutes with Martin to talk about hemp.
Whaling said the district attorney seemed unreceptive, and took to “bellowing” and attempting to be intimidating.
Martin said he gave Whaling a few minutes, despite not having an appointment, and asked him to leave when the conversation seemed unproductive.
Whaling said he urges the hemp industry to steer clear of Lehigh County.
Meanwhile, the inconsistency between state and federal law raises questions about CBD sales all across Pennsylvania.
