A Virginia lawmaker says the laws around CBD cannabis products need to be changed to ensure that innocent people are not caught in the criminal justice system.
“We want to do the right thing in Virginia,” said Del Mark Keem. “One thing we never wanted to do was put innocent people in legal danger.”
Kiem, D-Fairfax County, co-sponsored legislation that went into effect in March, changing the legal definition of marijuana to allow CBD cannabis-derived products containing traces of tetrahydrocannabinol (THC). This is the component of marijuana that can empower users.
But an investigation by News4 I-Team found that Virginia’s U.S. forensic labs are currently unable to determine the amount of THC in many CBD products to see if they comply with the law.
“We will have to do an additional test that we have never done before,” Linda Jackson, director of forensics, told I-Team. “The new law has definitely complicated all this.”
Before the law was changed, laboratories only had to determine if the products contained THC. Hemp products, such as CBD, are now not considered marijuana if they contain “no more than 0.3 percent” THC, so laboratories must be able to determine the exact amount. No one has checked to make sure this is possible before changing state legislation.
“Sometimes the law is ahead of technology,” Keem said.
Kim said the new law came into force as an emergency legislation so that agricultural production of industrial hemp could begin immediately. But the application of the law in criminal justice has left people like Kyle Traw in legal uncertainty.
Police in Fredericksburg arrested the owner of a marijuana store less than a week after the law went into effect. Trau told News4 I-Team that all his products are CBD.
Kim admits that it is difficult for police and prosecutors to be aware of any new law immediately.
In addition, when the state lab initially tested some of Traugh’s products, they did contain THC. The lab failed to test to determine how much.
Jackson has already sent a warning letter to state police and prosecutors, who rely on state-run evidence-testing labs to warn of the limitations of the tests.
She said evidence requiring more advanced tests will now be withheld until those tests are launched, which we hope will only take a few months.
Her letter also warns of an additional flaw in testing revealed in the I-Team report: The on-site tests that police typically use to identify marijuana are also positive for CBD.
The tests, widely used by law enforcement agencies across the country, are only designed to detect cannabinoids, such as CBD and marijuana. Tests cannot distinguish between the two.
At least one popular test brand tells consumers that the results are “only speculative” and “must be confirmed by an approved analytical laboratory”.
Virginia law currently allows employees to use field tests as evidence in court.
“Until we amend the law itself, the only thing we can do as legislators is call on our executive partners to ensure that this is not a place they should pursue,” Keem said.
The new law also distinguishes between testing plants and testing hemp products. However, in Traugh’s case, the evidence seized by the police appears to be plant material packaged as a product. The label says it is a CBD hemp flower and contains less than 0.3 percent THC.
“That’s one of the things I guess as a lab we didn’t take into account when we first saw the law,” said Jackson, who called lab testing an evolving process.
I-Team shared its findings with Kiem, asking him if he thought lawmakers would have to review marijuana and CBD laws next year.
“Oh, no doubt. I believe that will happen,” Keem said. “And thanks to your work and the investigation your team has done, this has really shed light on these gaps in our laws and the policies we have.