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How Congress passed a farm bill and left Maryland police labs unable to test for marijuana

The Baltimore City Police forensic laboratory will be purchasing a new liquid chromatography machine to test for the difference between hemp and marijuana.

As director of Baltimore’s crime lab, Chief Steven O’Dell paid no mind to the farm bill before Congress in late 2018. Neither did Rachel Lucas, who runs the Baltimore County police lab. The bill was supposed to set policy for agriculture, not evidence.

More than a year later, however, lab directors such as O’Dell and Lucas are still dealing with the far-reaching and expensive implications of the legislation. It made their instruments for routine lab tests of suspected marijuana suddenly obsolete.

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The issue is that the farm bill legalized the agricultural production of hemp — which contains trace amounts of a substance found in marijuana — and removed hemp from the government lists of controlled substances. The legislation defined hemp as any part of the plant containing 0.3% or less THC, the famous psychoactive ingredient in marijuana.

Marijuana has far more THC than that. But current police department equipment only detects the presence of THC, not the quantity. And simply finding the presence of THC was no longer enough to identify marijuana.

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In the busy Baltimore lab, marijuana testing ground to a halt.

“Nobody was prepared. You don’t look for these changes to your laws in farm bills,” O’Dell said.

Such work stopped in Baltimore County, too.

“What you needed was quantitation, and that’s the part nobody had,” said Lucas.

The new law caused Baltimore Police Commissioner Michael Harrison to tell the City Council this month that he plans to spend a state technology grant of $245,000 on new equipment to test for marijuana.

Though Baltimore State’s Attorney Marilyn Mosby has said she won’t prosecute for simple possession of marijuana, the city lab remained busy until last summer, when state legislation stemming from the farm bill took effect in Maryland. Workers had tested samples for federal agents, for local drug distribution cases, even for campus police such as those at Morgan State University and the University of Baltimore.

The hemp law has brought labs and lawmakers a lesson in unintended consequences.

“No, we didn’t talk about this. It just didn’t come up at all, not with all the experts in the room and all the testimony,” said Del. David Fraser-Hidalgo, the Montgomery County Democrat who sponsored the state bill.

One provision opened the door for the farming of hemp.

The federal bill established criteria to distinguish hemp from marijuana. The two had essentially been outlawed since the 1930s by rules making no distinction between hemp and marijuana as both come from the Cannabis sativa plant.

“Farmers often describe it as the difference between seed corn, which tastes great with butter on a summer day, and field corn, which only livestock and poultry want to eat,” researchers wrote in a 2018 Abell Foundation report, “The Case for Hemp in Maryland.

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Historically, fibrous and non-psychoactive hemp was manufactured into sails, ropes and canvas. Advocates sought to restart that lost industry and to produce medicinal CBD oil.

After Congress passed the bill, states followed suit with their own laws to permit and regulate hemp farms. Last year, the Maryland General Assembly passed legislation to establish the state’s hemp farming program. This bill, too, defined hemp as containing 0.3% or less of THC.

Typically, marijuana contains 5% to 10% THC, according to the Abell report. Maryland’s law took effect in June of last year.

Marijuana, however, remained illegal. This was a problem for police.

“The legislature passed a law that made it impossible to identify marijuana without new equipment,” said Monique Pitts, supervisor of the city lab.

Hemp and marijuana “are identical,” O’Dell said. “You can’t tell the difference by looking at it or smelling it.”

Nearly a dozen states have legalized marijuana. Maryland lawmakers decriminalized possession of up to 10 grams in 2014.

When the state legislature established hemp farming, lawmakers didn’t foresee the implications for police crime labs, said Del. Dana Stein, a Baltimore County Democrat who co-sponsored the bill last year.

“It’s a surprise,” Stein said. “This was not something that was presented.”

The Baltimore crime lab occupies the 10th floor of police headquarters downtown. There, about a dozen gas chromatography instruments can detect the presence of THC. Lab workers immerse suspected marijuana in liquid ethanol, vaporize the liquid, then send the gas through lab instruments to identify the compounds.

Before, lab workers simply had to detect THC to confirm marijuana. But when the law defined hemp as Cannabis of less than 0.3% THC, marijuana became Cannabis of greater than 0.3% THC.

Baltimore County Police, who handle fewer marijuana cases than the city, began sending samples to NMS Labs outside Philadelphia. Maryland State Police began outsourcing marijuana tests to the Pennsylvania lab, too. A state police spokesman said the outsourcing has cost the department about $300,000 for nearly 500 samples this year.

Spokespersons for the three departments say they have each received state and federal grant money — amounts ranging from $220,000 to $350,000 — to buy new equipment to test for concentrations of THC. Known as liquid chromatography and mass spectrometry instruments, this new equipment may also detect concentrations of other drugs such as fentanyl.

The expensive instruments remain useful even if state lawmakers legalize recreational marijuana, Lucas said.

“It’s been a year now and people are just getting the instrumentation,” she said. “I wonder if they [lawmakers] knew what they were doing.”

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