Why Are Hemp and CBD Legal, but Marijuana Isn't?


In November of 2018, hemp products were legalized under North Carolina State and Federal law. Since then, signs advertising “CBD” are hanging everywhere and stores selling hemp buds and CBD-infused products seem to be popping up on every street corner. With the legalization of hemp and CBD products one must wonder - how and why are people still being arrested and prosecuted for marijuana? To understand and answer this question a few points need to be understood.

  1. What is the difference between marijuana and cbd/hemp and how can you tell the difference?
  • The short answer is the levels of THC. Legal hemp plants and cbd-infused products must have a THC level of 0.3% or below. If the THC levels are above 0.3% it is considered illegal marijuana. The state of North Carolina’s pilot program has strict registration and reporting requirements that must be complied with in order to grow hemp, so one must be very careful and educated if they are trying to grow legal hemp.
  • Besides the level of THC, it is very difficult to tell the difference between legal hemp/cbd and illegal marijuana at a glance. Both look the same, smell the same, and taste the same. Just like dried marijuana flowers, dried hemp buds can be smoked, vaped, or eaten. The only way to distinguish hemp/cbd from marijuana is with a chemical analysis that provides quantified levels of THC.
  1. Legally, why is this important?
  • The legalization of hemp may have serious implications in possession of Marijuana cases as well as other types of marijuana cases throughout North Carolina. Oftentimes, officers will use the odor of marijuana as the basis to search a vehicle, which leads them to illegal drugs. Now, with hemp being legal and it looking and smelling exactly the same as illegal marijuana, officers may NOT be able to use the smell and sight as a basis for their search.
  1. Does this mean Marijuana is legal?
  • NO. While hemp’s legalization in North Carolina has created several legal issues when it comes to how police and the Courts handle and can prosecute marijuana cases, marijuana still remains illegal in the state of North Carolina.
  1. What does this mean for me?
  • The first thing it means is that you should be extra careful and not make any admissions about any green leafy substance you have. Generally, one of the first things the officer is going to try to do is to get you to admit to the substance being marijuana. If you do make any admission, remember, it can and will be used against you in court. Second, it means you should contact an attorney as soon as possible as there may be many defenses now available since hemp and CBD have been legalized.
  1. I’ve been charged with possession of Marijuana although it was hemp/CBD; does this mean the DA has to dismiss my case?
  • NO. While the legalization of hemp has caused issues in the state’s ability to prosecute these cases, each case is different and it is up to the individual District Attorney’s office to determine whether or not they will dismiss your case or move forward with a prosecution.

If you have questions about hemp, CBD, or marijuana, or are facing criminal charges involving possession of a controlled substance, please contact our Criminal Law partner, Mark S. Jetton, Jr. to assist you.