Legalizing hemp flower could open the door to a new market for Hoosier farmers and bring millions of dollars in revenue to Indiana. But prosecutors and police are worried doing so would take away one of their crucial tools for enforcing the state’s marijuana laws.
Hemp and marijuana come from the same cannabis plant and differ only by their level of THC, the chemical that makes marijuana users high. If a cannabis plant has 0.3% THC or lower, it’s legally considered hemp. Any higher, it’s marijuana. Otherwise, the two plants look and smell exactly the same.
That’s a problem for police.
If hemp flower were legalized in Indiana, police say it would make it impossible for law enforcement officers to tell if the substance is legal or illegal, creating issues when it comes to plausible suspicion for drug arrests.
A quick roadside test that could help officers tell if a bud is marijuana or hemp was recently developed out of Purdue University, but it’s in its early stages, and prosecutors say it won’t hold up in court.
The Indiana State Police declined to comment to IndyStar about this issue, but a representative spoke on the subject during an Indiana House committee hearing last month.
“These laws cannot be taken away because at the current time they are crucially important in upholding our current criminal system,” he said. “We cannot differentiate (hemp) from marijuana. You take that away, you take away the one substantive tool we have today to uphold our marijuana laws.”
But legalizing hemp flower would not only be a boon for Hoosier farmers, those in the industry say, it would also put Indiana on the same playing field as at least 39 other states where it is already lawful.
Other hemp products are legal in Indiana, but hemp flower holds the highest concentration of cannabinoids used to make CBD, a non-psychoactive chemical in cannabis used for relieving pain, anxiety, insomnia and other health issues. Currently, the flower has to be processed into other products first, such as oil or gummies, to be sold.
“The flower is the most lucrative part of the plant. There is a strong demand for it,” said state Rep. Sean Eberhart, R-Shelbyville, who has filed House Bill 1224 to legalize hemp flower. “This bill will legalize it, and allow our farmers and retailers and our consumers to use and grow that product.”
Hemp flower is federally legal, and contains no higher percentages of THC than other hemp products do. When smoked, it provides fast delivery of CBD.
“Really, all we’re talking about is another delivery method of CBD to the body,” said Justin Swanson, president of the Midwest Hemp Council. “All we’re trying to do is open this market up to the farmers, to give them confidence to explore the market.”
Three bills that would legalize hemp flower were filed this year at the Indiana General Assembly, but only HB 1224 has gained traction. A committee voted in favor of the bill and it is now pending in the House.
‘We don’t need to be scared’
While hemp contains some levels of THC, it is unlikely to get you high. Hemp products are capped at 0.3% THC, while marijuana products range from 5% to 20%.
Even so, it was federally illegal to grow and use until former President Donald Trump signed the 2018 farm bill. In Indiana, a “sweet spot” for hemp growing because of the climate and soil, farmers were already growing hemp under a 2014 rule that allowed institutions to grow the crop for research.
A year later, however, Indiana lawmakers banned hemp flower.
That upset growers and others in the industry, who point out that hemp flower is the part of the plant with the most potential for farmers to make a profit.
“If the largest concentration of CBD is in a part of the plant that you’re not allowed to use, that’s certainly a barrier to the economics of growing it and producing it,” said Rep. Justin Moed, D-Indianapolis, a co-author of HB 1224.
Joe Linne, a former hemp farmer and owner of retailer Hoosier Hempster, said it frustrates him that although hemp flower is held to the same 0.3% THC standard as other hemp products, it is illegal to sell.
“How can you really take one part of the hemp plant and make it illegal?” said Linne, also a small business advisor for the Indiana Small Business Development Center. “We don’t need to be scared of something that’s already been out helping people and helping the economic growth of their state.”
Hemp flower is the easiest way for farmers to enter the hemp market with the least amount of overhead costs, Swanson said.
Currently, farmers have to sell their hemp crop to a processor to be converted into CBD oil. The associated costs mean they sometimes get around 50 cents per pound for that crop. On the other hand, selling hemp flower directly can earn a farmer as much as $250 per pound.
Adam Gilliatte, owner of hemp genetics company Half Moon Hemp, said Indiana’s ban on smokable hemp flower puts Hoosier farmers at a disadvantage compared to those in other states.
“We’re getting to the point where the farmers don’t want to grow, because they’re not going to make the money versus what they can make in Illinois or Michigan,” Gilliatte said. “We’ve essentially killed an industry that was once looked at as a next opportunity for a farmer.”
Even so, the hemp market is growing in Indiana.
In 2019, the Indiana Office of the State Chemist registered 5,300 acres in Indiana. Last year, thatjumped to almost 9,000. In the same time frame, the square footage of indoor growers grew from 500,000 to 1.7 million.
That growth shows potential for millions of dollars in revenue for the state, Linne said.
In his calculations as director of the hemp council’s economic task force, he predicts hemp flower could bring in $14 million in gross revenue yearly just from farmers selling their product. If that product were sold at a markup on a retail level, that could be far higher — as high as $130 million.
“It’ll kind of blow you away,” Linne said, “the economic impact that it could bring to farmers.”
Law enforcement concerns
State police are worried legalizing hemp flower would take away what they say is a valuable tool in enforcing marijuana law: the presumption that the presence of a cannabis flower is a crime.
Currently, police have the right to arrest anybody who has marijuana or hemp flower, because both are banned. But if one is legalized, police won’t be able to tell whether a bud is legal or illegal.
In HB 1224’s hearing last month, a Purdue University researcher presented a new test that would allow law enforcement officers to tell if a flower is from marijuana or hemp in fewer than two minutes. Much like a breathalyzer, the test is designed to be easy for police officers to use roadside.
But the test is still new, prosecutors say, and it’s not going to hold up in court.
Dave Powell, senior counsel for the Indiana Association of Prosecuting Attorneys, saidduring the hearing that tests like these typically go through years of process before courts will allow them as evidence. He warned it may not be considered a viable law enforcement tool for some time.
“I don’t know of any court in the country that’s recognized (a test like this) as being admissible,” Powell said.
In a statement from the prosecutors association, a spokesperson said the group has additional concerns about HB 1224. These include that the bill would strip regulatory powers from the Indiana Seed Commissioner over hemp processors and handlers, and hamper the state’s ability to control hemp distribution.
The group also said this bill would remove the ability for law enforcement to protect Hoosiers from illegal hemp, or hemp over the 0.3% THC cap.
An amendment added last week may assuage some concerns about marijuana law enforcement. Under the new changes, hemp flower would be treated like an open container. This means if you want to transport hemp as a consumer, you’d need that container as evidence that the flower is not marijuana.
“It’s just another step to ensure that what the consumer has is hemp and not marijuana,” Eberhart said. “The state police are not going to support the bill even with that change. But we thought it was a better bill with the amendment.”
HB 1224 now awaits a vote before the full House. If approved, it would then move to the Senate for a committee hearing.