Marijuana vs Hemp: Legality and Differences

October 26, 2023 Don Pumphrey, Jr. Criminal Defense, Drug Charges Social Share

In the state of Florida, it is important to familiarize yourself with all relevant laws relating to the consumption and possession of marijuana to avoid criminal prosecution. Florida allows marijuana consumption for those who fit the eligibility for medical marijuana and obtain a prescription from an appropriate physician. However, recreational marijuana consumption remains illegal.

In this article, we will first provide context on the cannabis plant, where both marijuana and hemp derive from. For those who are unfamiliar with it, hemp is a substance that looks and smells very similar to marijuana.

Both Federal and State legislators have made the possession and consumption of hemp legal, which can be confusing to those who don’t yet understand their differences. Regardless of hemp’s legality in the state, Florida still established certain rules and limitations for consuming the product, which we will provide context for further below.

This page will give insight on the similarities and differences between marijuana and hemp, along with the current legal standards for the consumption and possession of each substance in Florida.

The Diversity of the Cannabis Plant

Despite some people using the terms “cannabis” and “marijuana” interchangeably, they mean slightly different things.

Cannabis is the diverse plant where both hemp and marijuana stem from. Inside a cannabis plant are chemical compounds referred to as cannabinoids, the chemicals that cause the effects of marijuana use. The two main cannabinoids identified in cannabis are: tetrahydrocannabinol (THC) and cannabidiol (CBD).

The three distinct species of a cannabis plant include:

1. Cannabis sativa – Known for its higher doses of THC and lower doses of CBD, which leads to a “mind high” or an energizing, anxiety-reducing effect. The plants are typically tall and thin and tend to take longer to grow than other forms of cannabis.
2. Cannabis indica – Known for having a more evenly proportion of CBD and THC, with a slightly higher level of CBD. Primarily used for its intense relaxing effects that can help to reduce nausea, pain, and increase appetite. The plants are short and stocky and grow quicker than cannabis sativa.
3. Cannabis ruderalis – Known for its short growing cycle, which reaches a flowering stage within 21-30 days regardless of the amount of light it receives. Has a milder effect than other types of cannabis due to its naturally low level of THC; however, it is commonly mixed or “hybridized” with indica and sativa strands to create higher percentages of THC along with the faster growth cycle.

Both hemp and marijuana are considered the genus and species Cannabis, however each plant has different chemical makeups that result in different effects and purposes.

Marijuana vs Hemp

Florida’s definition of marijuana is “all parts of any plant of the genus Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin.

Florida’s definition of hemp is “the plant Cannabis Sativa L. and any part of that plant, including the seeds thereof, and all derivatives, extracts, cannabinoids, isomers, acids, salts, whether growing or not, that has a total [THC] concentration that does not exceed 0.3 percent.”

Dr. Genester Wilson-King, Co-Vice President of the Society of Cannabis Clinicians (SCC), provides education and insight on the promotion, protection, and support of marijuana for medical use. She is also a part of the Board of Doctors for Cannabis Regulation (DFCR), a group of national physicians dedicated to the legalization and regulation of marijuana for adults. Dr. Wilson-King has served as an expert witness for legal cases involving marijuana. In the Treadwell Farms series on CBD Education, Dr. Wilson-King provided insight into the similarities and differences between marijuana and hemp.

According to Dr. Wilson-King, Marijuana is cultivated specifically for its flowers, which contain high amounts of cannabinoids. Plants grown for their cannabinoid content are referred to as “high resin” plants. Researchers around the world have investigated the therapeutic attributes of marijuana for medical use. Regardless of whether the cannabis plant is “high resin” or “low resin,” what makes it classified as marijuana is that it has a THC level of over 0.3% under federal legislation.

On the other hand, Hemp is classified as having a THC level of 0.3% or less. Cannabis sativa that is grown specifically for stalk or seed production is referred to as industrial hemp and is considered “low resin.” Unlike “high resin” hemp, industrial hemp lacks medicinal components and contains less CBD. Dr. Wilson-King explained that hemp is a product that has been cultivated for nearly 10,000 years. It was previously the largest agricultural crop in the world, until the U.S. banned it in 1937 alongside its higher THC counterpart, marijuana.

Essentially, the main difference between marijuana and hemp is the amount of THC within it, which is the chemical that causes the well-known effects of marijuana. THC attaches itself to the brain areas that influence pleasure, memory, thinking, concentration, movement, coordination, sensory, and time perception.

Federal Changes Regarding the Cannabis Plant

A major legal change to the status of cannabis happened with the passing of the Federal Agriculture Improvement Act of 2018, also known as the 2018 Farm Bill. The legislation differentiated hemp from marijuana based on its chemical composition—specifically based on the amount of tetrahydrocannabinol (THC) present in each substance.

Under the Farm Bill, the Federal Government classified hemp as cannabis containing 0.3% of THC or less, and classified marijuana as cannabis containing traces of THC over 0.3%. The statute also declassified hemp as a Schedule I drug substance. However, marijuana remains a Schedule I substance.

Since then, Florida has made its own legal amendments regarding medicinal marijuana and hemp.

Florida’s Current Legal Stance on Marijuana and Hemp

Florida has separate laws pertaining to the possession, sale, and use of medical marijuana and hemp.

Medical Marijuana Laws

Medical marijuana first became legal in Florida following the 2016 election, when 71% of Floridians voted in favor of Amendment 2, the constitutional amendment that created the State’s medical marijuana program. Several bills were passed in 2017 through 2019 to update the specific rules and requirements. Governor Ron DeSantis signed SB 182 titled “Medical Use of Marijuana” which lists the current requirements for legally obtaining medical marijuana.

Florida Statute Section 381.986 provides the laws and regulations surrounding medical marijuana possession.

The medical use of marijuana is defined as the acquisition, possession, use, delivery, transfer, or administration of marijuana authorized by a physician certification. It does not include any of the following:

• Possession, use, or administration of marijuana in the form of commercially produced food other than edibles or marijuana seeds;
• Use or administration of any form or amount of marijuana in a manner that is consistent with the qualified physician’s directions or physician certification;
• Transfer of marijuana to a person other than the qualified medical marijuana patient; or
• Use or administration of marijuana in any of the following locations:
  • Any form of public transportation, except for low-THC cannabis in a form other than smoking;
  • Any public place, except for low- THC cannabis in a form other than smoking;
  • In a state correctional institution;
  • On the grounds of any preschool, primary school, secondary school; or
  • In a school bus, vehicle, aircraft, or motorboat, except for low- THC cannabis in a form other than smoking.

To read about the specific qualifications and procedures to obtain a medical marijuana card in Florida, refer to our blog post here.

Important: Without a medical marijuana certification provided by a licensed physician, the possession of marijuana in Florida is illegal. Some districts in the state have decriminalized marijuana, meaning that a person caught in the possession of a small amount of marijuana may only have to pay a civil fine rather than face criminal charges. However, it is important to address that this is not a statewide stance, and certain counties (including Leon County) will still prosecute you for small amounts of marijuana possession. This differs from legalization, because police can still seize the substance and either force you to pay a civil penalty or charge you for the offense of possession of marijuana.

To review the list of Florida local counties for marijuana decriminalization, please refer to NORML’s page here.

To review the penalties for illegal marijuana possession in Florida, read our informative page here.

Hemp Laws and Penalties

Florida Statute Section 581.217 provides the laws and regulations surrounding the State hemp program.

Hemp extract is considered a substance or compound intended for ingestion, containing more than trace amounts of cannabinoids, or for inhalation, which is derived from or contains hemp, but does not contain controlled substances.

The State hemp program explains that an individual who wishes to cultivate hemp in Florida may legally do so, but only after obtaining a license issued by the department.

Those who wish to distribute or sell hemp extract can only do so if the product includes:

• Certificate of analysis by a testing laboratory that states:
  • The hemp extract is the product of a batch tested by the independent testing laboratory;
  • The hemp extract contained THC levels that do not exceed the 0.3% legal limit;
  • The batch does not contain contaminants unsafe for human consumption; and
  • The batch was processed in a facility that holds a valid and current permit issued by a human health or food safety regulatory entity with authority over the facility, which meets the food safety requirements.
• A container the hemp extract is sold in, which must include:
  • Scannable barcode for the certificate of analysis of the hemp extract batch by the laboratory;
  • Batch number;
  • Website including batch information;
  • Expiration date; and
  • Number of milligrams of each marketed cannabinoid per serving.

Further, hemp extract may only be sold to businesses that are properly permitted by the state.

Hemp products that are intended for ingestion or inhalation are prohibited from being sold to any person under the age of 21-years-old. Examples include but are not limited to snuff (finely ground hemp blend), chewing gum, and other smokeless products. Violating this law can result in getting charged with a second-degree misdemeanor. In Florida, a conviction for a second-degree misdemeanor carries the following possible penalties:

• Up to $500 in fines; and
• Up to 60 days in jail.

A second or subsequent offense can result in being charged with a first-degree misdemeanor. A conviction for a first-degree misdemeanor carries the following possible penalties:

• Up to $1,000 in fines; and
• Up to one year in jail.

Action Items / Complex Issues Surrounding Hemp and Marijuana

Prior to the 2018 Farm Bill, the mere presence of THC found in seized hemp was sufficient to consider it a controlled substance. Since the bill’s signing, crime laboratories have been trying to figure out how to differentiate seized cannabis samples as either hemp or marijuana, despite a lack of reliable methods to measure the quantity of THC in a sample.

The Florida Department of Agriculture and Consumer Services’ Office of Agriculture Law Enforcement published the Hemp and CBD Information for Florida Law Enforcement to address the issues of distinguishing between legal hemp flower and illegal marijuana. They determined that it is impossible to tell the difference between the substances by merely looking at the material. The main difference lies between the levels of THC, which can only be determined through a laboratory test.

In a study funded by the National Institute of Justice (NIJ), researchers pulled hemp samples from five online stores selling commercial hemp products. The researchers’ method used peer-reviewed extraction and liquid chromatography to separate the chemicals in each sample and calculate how much THC each contained. Of the 53 samples, 49 were incorrectly labeled as hemp. The reason was because the “hemp” products contained a higher amount of THC than 0.3%, which is the legal threshold.

While the study claims this should not be indicative of the entire legal hemp field, their results highlight the potential crack in the legal field. It is not hard to imagine, then, a Florida police officer seizing cannabis from a suspect who claims it is legal hemp, but after testing is found to be illegal cannabis. A seemingly legal purchase could instead result in the person being charged with a drug crime of which they were not even aware.

That means when if a substance the defendant believed to be hemp is seized by police and tested and comes back with a THC level higher than 0.3%, it is positive for illegal marijuana regardless of whether the defendant had been under the impression he was purchasing legal hemp. This means you could be facing a drug charge. This is why accessible testing to distinguish between the two substances would massively help the criminal justice field.

In recent years, efforts have been made to design efficient and quality testing methods to distinguish between illegal marijuana and hemp. However, due to common issues such as supply and demand or overly expensive products, testing products are not yet widely accessible. You can read our blog post on current THC testing methods here.

NIJ’s Action Items Surrounding Hemp and Illegal Marijuana

The need for accurately measuring the amount of THC in a cannabis product can be seen as more of a problem in jurisdictions where it remains unlawful. Florida, for example, is an interesting state due to it legalization of medical marijuana and not recreational marijuana. The NIJ addresses some action items for law enforcement to address the complex issues around hemp and marijuana:

• Understand that people may exhibit the effects of being under the influence of marijuana from products not marketed as such;
• Alert and educate Florida law enforcement about the possibility of product mislabeling and how it may affect those on parole in possession of a potentially inaccurately labeled product;
• Reach out to city managers, mayors, and other elected officials to raise awareness on the issue of mislabeled hemp;
• Develop relationships with local crime labs to understand the policies and current methods around marijuana testing;
• Seek private or federal funding for forensic lab infrastructure that could assist the team and help with the development of improved hemp and marijuana differentiation methods; and
• Increase awareness and training for officers on the assumptions they may have when making arrests and the possible implications for the way suspects are prosecuted.

Further, if you believe you are being unfairly prosecuted for a drug charge, contact a Florida defense attorney to represent your case.

Contact a Tallahassee Drug Defense Attorney Today

While there are clear health benefits from both hemp and marijuana, it is extremely important that you understand the different laws regarding each substance. Florida’s unique stance on marijuana remains limited, only allowing those with a qualified Florida medical marijuana card to legally purchase and possess the substance.

On the other hand, hemp is legal in Florida. Other than age-restricting laws, hemp is a much more accessible product. However, the gray area for assessing the levels of THC in each substance remains prominent. Until there is a universal method for police to test between hemp and illegal marijuana, there could be instances of lawful Florida citizens getting arrested for a substance that was advertised to them as legal.

If this has happened to you or someone you love, you should consider hiring a Florida defense attorney. A conviction for a drug offense in Florida can carry steep penalties. You could be forced to pay expensive fines, face imprisonment, and lose your driving privileges due to a mandatory driver’s license suspension.

The Tallahassee criminal defense lawyers at Pumphrey Law understand that facing criminal prosecution is both intimidating and stressful. Don Pumphrey and his team will provide you with non-stop support, answering any questions you may have during this trying time. We’ll build a defense for your case to earn back your freedom. Contact our office today at (850) 681-7777 or leave us a message on our site for a free consultation.

Written by Karissa Key

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