Todd Smith was out of town one Saturday when he got an unnerving phone call. 

It was from a few friends who were running his CBD store, Top Hat Tobacco and Cigars, in Anderson County, South Carolina. Local law enforcement officials had entered the store, saying they needed to test his products for tetrahydrocannabinol, or THC the psychoactive compound in marijuana that produces a chemical high. 

But Smith wasn’t selling marijuana. He was selling smokable hemp. The two plants are cousins, but, unlike marijuana, hemp can be sold legally in retail stores as long as it has a concentration of less than 0.3% THC an amount small enough that it won’t produce a high.  

The officials confiscated Smith’s smokable hemp after detecting THC. But Smith argued they were using “outdated” tests that only check for the presence of THC and don’t distinguish the levels found in different plants. 

Problem is, nobody actually knows whether smokable hemp is legal in South Carolina. Same goes for North Carolina. The laws regulating hemp are vague, and law enforcement in both states would prefer to make smokable hemp illegal because they can’t distinguish the hemp plant from its illegal relative, marijuana. 

And even if law officers had such a test, they wouldn’t have probable cause to seize it for testing purposes, said Eddie Caldwell, executive vice president and general counsel of the N.C. Sheriffs’ Association. 

If a law officer sees a pile of green, leafy substance in the back of someone’s car, for example, or if they notice it on someone’s kitchen table while accompanying an EMS vehicle to a rescue, the officer will have no probable cause or legal right to seize the material for testing.

“This whole thing about test kits is a discussion about nothing,” Caldwell said. 

Blake Butler, executive director of the N.C. Industrial Hemp Association, disagrees. He advocates for continuing to develop testing technology, and for passing open-container and compliant packaging provisions. North Carolina is fifth in the nation for hemp production with 1,300 approved hemp-growers.

“From being in it for six years, I think the future of North Carolina lies in hemp,” he said. 

The reason for the sudden confiscation at Smith’s store was the result of an opinion issued by Attorney General Alan Wilson a few days before. Wilson claimed the state’s 2019 Hemp Farming Act passed in March allows only for processed hemp products, not the raw, smokable kind.

“The mere possession of raw, unprocessed hemp or hemp not in a finished hemp product without a license is unlawful,” Wilson stated in his opinion.

In North Carolina, law enforcement also interprets state law to ban smokable hemp, although they don’t intend to act until the law is more clearly defined, Caldwell said.

Hemp lobbyists, including Butler, disagree. He refers to the definition of industrial hemp provided in a hemp bill passed in 2015 as including “all parts and varieties” of the plant, saying this should include smokable hemp, as well. 

That’s good for consumers and retailers, for whom the smokable version of hemp is among the most popular comprising about 20% to 25% of revenue from hemp in the state, Butler said. 

Franny’s Farmacy in Hendersonville is one such retail store. The store’s manager, JT Rhoades, says about half of his customers come in specifically to buy smokable hemp. The smokable product is cheaper and gets through a user’s system more quickly than other kinds of CBD products, like oils or edibles, which is why many people prefer it, Rhoades said. He said a hemp ban wouldn’t put him out of business, but would change how accessible products are to consumers.

“It would be a big blow to our sales for sure,” he said.

Lawmakers have a role. Senate Bill 352, amended in the House in late July, would reclassify some forms of smokable hemp as a controlled substance beginning Dec. 1, 2019. 

Hemp advocates have said S.B. 352 is unclear, and could unintentionally ban otherwise legal hemp products if they’re smoked.