It’s a tale of two cannabis products: hemp and marijuana. One is legal and isn’t supposed to get you high, and the other you can only use medicinally in Florida. The most distinguishing factor between the two is the amount of the chemical THC it contains. According to the law, if the cannabis product has below 0.3% THC it’s considered hemp, and if it has more than that then it is considered marijuana.
Until now, no field test used by police could distinguish just how much THC a cannabis product has to tell the difference, which led to moments like one last year where police arrested a grandma at Disney World after finding a CBD product (made with hemp) in her purse. At that time, the rules around hemp products were still being developed by the state.
MORE: Great-grandmother arrested at Disney World for having CBD oil; but is it really illegal?
“We knew it was going to propose an issue for law enforcement,” said John Waldheim, COO and Founder of Syndicate Chemistry, a subset of his defense contracting company Syndicate Alliance.
He is America’s master distributor of a new field test, designed in Switzerland, that indicates whether the THC goes above the legal limit.
“It was like an overnight sensation,” Waldheim said.
WINK News bought CBD products, made with legalized hemp, to see if the kits were accurate. Waldheim explained that the test is presumptive, and it isn’t perfect. Too much product can lead to inconclusive results. But when used properly, he says it’s a great first line of defense.
“You take the kit and use it if it’s a positive result, then I would say it’s recommended that they take their product to the lab to have a final quantification of the THC levels verified,” Waldheim said.
Waldheim says close to 52 agencies across the state signed up for these kits. Only two agencies in Southwest Florida — Punta Gorda Police Department and Charlotte County Sheriff’s Office – confirmed to WINK News that they are using them.
So what happens if agencies don’t have this test? They cannot tell the difference between legal hemp and illegal marijuana.
This all began after hemp and hemp-derived CBD products officially became legal in Florida on July 1, 2019, and law enforcement faced the issue of how to determine whether products are legal or not.
In August 2019, WINK News uncovered some agencies in the area had paused cannabis-related arrests nearly altogether as a result of the change.
New numbers WINK News requested from agencies across Southwest Florida show the stark outcomes. In 2019, after the hemp law went into effect, charges for misdemeanor marijuana possession plummeted compared to the same time in 2018.
No agency in the area would talk to WINK News on camera, but Public Information Officer Lt. Dylan Renz from the Punta Gorda Police Department said over the phone that the hemp law played a major role in the drop in arrests.
And Karie Partington from the Collier County Sheriff’s Office said in an email:
“Recent changes in law have allowed people to legally possess hemp and/or possess marijuana for medical purposes. It is likely that some who would previously have possessed marijuana illegally are now able to do so and be in legal compliance.”
Attorney and FGCU professor Pamella Seay says law enforcement’s old tactics, such as using sight and smell, just don’t hold up.
“They are reluctant to do anything because you can not tell the difference,” Seay said.
Cost is another obstacle. Each individual kit is roughly $15, and most of the time agencies are responsible for covering those costs and third-party lab testing because state labs can’t do it.
The Florida Department of Law Enforcement (FDLE) told WINK News in an email:
“Currently the laboratories in the state of Florida have only been able to determine that plant material is cannabis. Hemp and Marijuana are the same plant, “cannabis”, the only difference is the amount of THC or CBD certain strains of hemp and cannabis produce. With the new legislation, the laboratories current practice of stating this plant material is cannabis is not sufficient to distinguish the strains. The labs must now determine the amount of THC that is in the plant material or edible. This requires a more complicated and time-consuming process and the laboratories struggle to keep up with the current workloads. Implementing even a semi-quantitative testing process will require additional equipment and personnel to handle the increased submissions and the lengthier exams.”
Seay said determining whether a product is hemp or marijuana is the difference between going to jail and not.
“You don’t want someone who has legitimate proper hemp to be arrested, but neither do you want someone that has illegitimate, illegal marijuana to get away with it,” Seay said. “The biggest concern that I would see is that it has not yet been validated in court. And that’s where you would have testimony about the validity of it, the methodology, the process, and whether or not it really works, and how does it work.”
Back in November, the state of Virginia validated these kits and officially approved law enforcement to use them.
Waldheim said Virginia has ordered 16,150 kits from his company, and one of his goals is to get the kits validated in Florida as well.
“We will work with any state agency that wants to do the validation. We’ll give them free kits, and let them go through the validation process,” Waldheim said.
Below are responses from agencies in Southwest Florida when asked if they had an update on their procedures in determining the difference between hemp and marijuana. Find their original responses from August here.
Community Affairs Supervisor Skip Conroy, Charlotte County Sheriff’s Office:
“Nothing has changed regarding how we operate from last August. We have the test kits and we have the lab in place. If a field test comes back indicating the required level of THC, we will send the substance out to the lab.”
Lieutenant Dylan Renz, Punta Gorda Police Department:
“After speaking with Chief Davis about this today, we have decided that it would not be prudent for us to provide any speculation on this matter or discuss our investigative techniques. It would be difficult to do so without providing information to the public that may lead to people attempting to circumvent the law, which we obviously want to avoid. I apologize we could not be of further assistance on this issue.”
“Per the General Order any suspected marijuana would need to be sent to a private lab for additional verification, however, we do not want to provide specifics at this time.”
Lieutenant Anita Iriarte, Lee County Sheriff’s Office:
Master Sergeant Patrick O’Grady, Cape Coral Police Department:
“At this time, we are training two K-9’s that will not alert to the presence of cannabis.”
Deputy Police Chief Jeff Meyers, Fort Myers Police Department:
“Currently we have nothing new to report. This continues to be an ongoing process.”
Lieutenant Matt Fletcher, Naples Police Department:
“I do not have any new information for you at this time.”
*The Collier County Sheriff’s Office did not respond to this specific request for information.