A cannabis test that landed a Lehigh County man in jail this spring raises concerns about the legal status of hemp products, but the case has few parallels for Pennsylvania hemp farmers.
On Feb. 27 and April 4, Pennsylvania State Police seized packages that smelled like marijuana that had been shipped from Kenneth Grossman’s business address in Allentown to an address in New York.
Police found jars and packets of products suspected of containing CBD. The chemical, extracted from the hemp flower, may provide medical benefits such as pain relief.
CBD-infused products are widely available at Pennsylvania stores and pharmacies even though their legal status is a bit murky. The federal Food and Drug Administration is still deciding how to regulate the chemical.
The more serious problem was that the samples tested positive for THC, the chemical that gives marijuana users a high.
Hemp, which comes from the same species of cannabis as marijuana, can legally contain only trace amounts of THC — 0.3% or less.
But the standard field test the police used detected only the presence of THC, not its concentration.
On May 29, police searched Grossman’s vehicle and storage unit, seizing an assortment of items described as CBD hemp flower products, including CBD-infused candy.
The inventory sheet makes no mention of THC or marijuana, but again a sample tested positive for THC, and a drug-sniffing dog pegged the storage unit.
Grossman was arrested and charged with criminal conspiracy related to controlled substances.
Packaging and a lab report accompanying some of the seized items indicated the products contained 0.3% or less of THC, police Trooper Jordan Sonka said in a court hearing, adding he couldn’t speak to the veracity of those claims.
Grossman and his son Jason told Sonka they were starting a wholesale CBD distribution business.
When his son first told him about CBD, Kenneth Grossman — who, according to court records, has a prior record including trademark counterfeiting and drug possession — was worried the chemical might be illegal, Sonka testified.
Jason Grossman reassured his father CBD’s legal status had changed recently. The two attended several trade shows and were planning to get warehouse space in the near future, Sonka said.
The Grossmans, who aren’t hemp farmers, were reselling products they got from an Oregon distributor who was buying from farmers there.
The Grossmans sold to local stores and gas stations, and to connections in D.C. and New York, Sonka testified.
Testing the test
Though it doesn’t get people high, hemp spent decades on the federal controlled substances list because of its similarity to marijuana.
That ended in December, when the federal Farm Bill delisted hemp and blocked states from prohibiting the interstate transportation of hemp.
But gray areas still exist.
In January, an Idaho State Police trooper arrested a truck driver who said he was hauling a load of hemp from Oregon.
During the inspection, the trooper employed a drug-sniffing dog and the same type of field test Sonka used on Grossman’s products.
Those methods — which can identify THC even at the low levels within the legal limit for hemp — aren’t discriminating enough anymore, said Geoffrey Whaling, chairman of the National Hemp Association.
At least half a dozen inventors and universities are working on better tests and equipment, said Whaling, a Berks County resident.
Those advances could benefit hemp businesses, as well as innocent people accused of drug possession.
Field tests are good enough to establish probable cause for an arrest, but they aren’t reliable enough to use as evidence at trial.
Still, unconfirmed field tests are used across the country to secure guilty pleas, ProPublica reported in 2016.
Pennsylvania State Police test evidence for its concentration of THC on a case-by-case basis, spokesman Trooper Brent Miller said in an email.
Miller would not say how police distinguish between hemp and marijuana other than that “troopers receive training on all types of drugs.”
A spokeswoman said the Lehigh County District Attorney’s Office, which is prosecuting Grossman’s case, wouldn’t comment on an open case.
On top of changing its narcotics field tests, Pennsylvania needs to clarify its controlled substance law to ensure law enforcement officials leave hemp alone, Whaling said.
To that end, Sen. Judy Schwank, the top Democrat on the state Agriculture and Rural Affairs Committee, has introduced a bill explicitly affirming that hemp is allowed in human foods and cosmetics.
The bill is similar to a Colorado law.
“It will position Pennsylvania hemp farmers and processors to capitalize on the surge in CBD and other hemp food product sales, and it will ensure that consumers are actually purchasing a pure product that contains the actual concentration of CBD that is listed on the product label,” Schwank said.
The bill was sent to the ag committee in February but hasn’t come up for a vote. The Senate will next meet in late September.
A spokesman for committee Chairman Sen. Elder Vogel wasn’t sure if the bill would be taken up in the fall, but he said Vogel didn’t oppose the concept of the legislation.
But even without that legislation, Pennsylvania hemp farmers are less likely than Grossman to be arrested for possessing hemp.
All hemp farmers must be permitted by the state, and their permits are backed up by GPS coordinates for their fields and THC test results for the plants.
The Pennsylvania Ag Department, not a private lab, conducts the THC tests. The agency tests the crops, not hemp products, said Shannon Powers, an Ag Department spokeswoman.
No permits are required specifically to sell hemp products.
Licensed hemp growers are not allowed to have a drug-related felony conviction in the past 10 years. That could set them apart from Grossman, who has a prior record.
As of his preliminary hearing in June, Grossman remained in jail under a detainer for a probation violation.
To Whaling’s knowledge, Grossman is still behind bars. Grossman’s attorney didn’t respond to emailed questions.
Whaling said he has communicated with the Lehigh County district attorney and has volunteered to Grossman’s attorney to be a witness regarding hemp.