SIOUX FALLS, S.D. (KELO) — Gov. Kristi Noem (R-SD) wrote a letter to the editor on Monday to the Wall Street Journal. In it, Noem said she won’t support legalizing hemp until the law can tell the difference between it and weed.

We are going through the letter to verify Noem’s claims.

Claim 1: Across the country, states that have legalized hemp are struggling to enforce marijuana regulations.

✔ This is accurate.

Texas is one of the states having issues enforcing marijuana regulations. Florida is another state dealing with these troubles.

“If you want to have a hemp industry, there’s no way to get around this issue,” said Phil Archer, the state attorney in Florida’s 18th Judicial Circuit. He said he has not filed any marijuana cases since Florida’s hemp law went into effect July 1. “I would say a majority of circuits are handling it in same way.”

NBC News reports

Claim 2: Hemp and marijuana look and smell the same.

✔ This is accurate.

Just look at the photos below. One of the cups has marijuana. One has hemp. It is extremely difficult for someone to tell the difference between the two.

Courtesy: WKRN

Claim 3: Police officers can’t tell the difference between them during a traffic stop.

❌ This is inaccurate.

While it is difficult to distinguish by just looking at the plant, there are tools law enforcement can use to determine if there is THC.

Virginia is at least one state using field tests that allow officers to tell the difference between the two in just minutes.

As reported by NBC Washington, the device was developed in Switzerland.

The test kits cost $15.

The company does warn “all test results are presumptive and should be confirmed by a laboratory for a quantitative analysis to determine the precise THC concentration of the substance.”

THC is the chemical component that creates the high. Federal law requires THC to be 0.3% or less.

The company claims 80,000 kits have already been sent out.

The Drug Enforcement Agency also has begun using these kits. Assistant Special Agent in Charge of the Omaha District Steve Bell said they wouldn’t hold up in court.

“I don’t want to give you a false sense of security. It’s just a presumption,” Bell said.

The costs can also add up for field or lab tests, according to Bell.

If someone is pulled over with nine plants in their vehicle, nine could be hemp and one could be marijuana. So, they have to test each plant.

Gov. Noem is correct when saying South Dakota officers don’t currently have the tools to tell the difference. Her administration demonstrated that earlier this year.

However, a field test is available and being used by law enforcement in the United States – so the claim overall is false.

Another idea: In Ohio, the state is developing a registry. Growers will likely have to be part of it and law enforcement can access to see if the plant growing in front of them is being grown legally, WCMH reports. According to the state’s Director of Agriculture, everything else will be considered marijuana.

Claim 4: Law enforcement official tells Ohio station it’s not possible for a human being to distinguish between hemp and marijuana.

✔ This is accurate.

The quote from WBNS-TV is: “Now we have to be able to distinguish the difference between hemp and marijuana,” said Jason Pappas, Vice President of the Ohio Fraternal Order of Police. “That is not possible for a human being to do, that has to be done through crime analysis.”

The quote was not presented verbatim, but did get the essential message.

Claim 5: Many crime labs are unable to distinguish between the two plants.

➖ Here’s what we found.

Many crime labs can do this testing. For example, in Omaha the crime lab can detect it. The City of Omaha uses University of Nebraska Medical Center as its crime lab.

A search of news stories from across the country shows many labs have the equipment; they just need to validate their procedures of testing.

Claim 6: Crime labs can detect THC, but can’t determine how much is there.

➖ Here’s what we found.

The DEA has developed a way to test for THC in the plant. Basically, it will test for THC (above 1%).

Texas plans to use this method in 2020.

It would need to purchase new machines at a cost of $75,000 each, according to the Texas Tribune.

Fun fact: Why is marijuana spelled marihuana? That’s actually the original spelling in U.S. law – Marihuana Tax Act of 1937. It was repealed shortly after going in to law. Some states continue to use the H spelling.

Claim 7: The technology exists, but it costs hundreds of thousands of dollars.

➖ What we found:

A company in Texas has developed a test that can detect THC and other components in the plant. CANN-ID from Ionization Lab is a software that is designed to be used by law enforcement.

The hardware for this system is about $30,000, according to FOX 7 in Austin. A subscription to software depends on the number of tests run each month; it’s typically between $20-50 per test.

The president of the company tells KELOLAND News this is to be used as a pre-screening program to test for THC to avoid expensive tests.

The lab that the Minnesota Department of Agriculture uses to test THC is Legend Technical Services in Saint Paul, Minnesota. The lab is A2LA accredited for cannabis testing. To get that accreditation the lab must have ISO/IEC 17025. ISO 17025 is a universal standard to “demonstrate that they operate competently and generate valid results, thereby promoting confidence in their work both nationally and around the world.”

The cost for Legend is $80 per test to determine THC.

For in-house labs, it could cost more. Last week, a Texas county approved more than $100,000 to purchase lab equipment.

Claim 8: A full crime analysis results take weeks.

❌ This is inaccurate.

In Omaha, the crime lab the city works with takes 24 hours to four days to complete tests, according to KETV-TV.

The Omaha Lab has a GC-mass spectrometer.

“This is an established, well-proven scientific method,” said Omaha City Prosecutor Matt Kuhse to KETV.

In South Dakota, all drug testing goes through the State Department of Health, according to the South Dakota Attorney General’s office. According to its website, the lab has three of these machines.

Rapid City has the machine, according to a job posting for a forensic chemist.

That doesn’t mean these agencies can do the test right now.

Claim 9: Since Texas passed an industrial hemp law in June, prosecutors have dropped hundreds of marijuana cases and have stopped accepting new ones until more-accurate tests are available.

➖ Here’s what we found:

This isn’t a universal policy across Texas. KXAN reports one county will continue prosecuting marijuana cases.

In July 2019, prosecutors in at least two counties in Texas dropped misdemeanor marijuana cases. According to Houston ABC affiliate KTRK, the two counties said they will not accept these cases without lab tests showing an illegal level of THC.

“As a matter of fundamental fairness, it’s not right to be prosecuting the cases that are pending without a lab test. It is where the legislature in its wisdom and the Governor and his wisdom has signed into law this additional element of proof.”

David Mitcham, the first assistant in the Harris County District Attorney’s Office told KTRK

“We are actively researching a solution and once we find one that is reliable and affordable, it will be business as usual.”

Fort Bend DA Brian Middleton told KTRK

The station also reported that Middleton said cases in his county can be refiled when they find a solution.

The takeaway is that you may have to put your marijuana cases on the same “waiting for lab results” shelf as your felony DNA cases and postpone them until the labs can provide the needed evidence for prosecution. We have been informally told that it should take labs anywhere from four to 12 months to purchase new equipment and adopt and validate the necessary protocols to be able to provide the evidence needed to prosecute a marijuana case at trial. This does not necessarily mean marijuana cases cannot be investigated or charged under the Controlled Substances Act during that time—after all, no one can legally possess or sell hemp when the rules necessary for doing so have not been implemented yet—but unless a defendant stipulates that his cannabis is marijuana and not hemp, any criminal cases may need to wait to go to trial until testing on them can be completed. 

The Texas District and County Attorneys Association

However, here is where things get tricky. Gov. Greg Abbott (R-TX), the lieutenant governor, attorney general and speaker of the house sent a letter to Texas District and County Attorneys to say they’re interpreting the law incorrectly.

Claim 10: Without the ability to test the level of THC in a plant, labs can’t provide useful scientific evidence for use in court.

❌ This is inaccurate.

Labs can test the level of THC in a plant, as outlined in claims 6, 7 and 8.

Claim 11: Any case of suspected marijuana possession in states with legal hemp requires this expensive and time-consuming tests.

➖ This is opinion

This is open to opinion of the readers. It is true, industrial hemp does require more rigorous testing. However, the 2018 Farm Bill took hemp off the U.S. Controlled Substances Act and made it an agriculture commodity.

Then Congresswoman Noem voted for the 2018 Farm Bill.

As explained in a previous Original report, a memo from the U.S. Department of Agriculture released in May complicates this issue. Lawyers for the USDA determined that “states and Indian tribes also may not prohibit the interstate transportation or shipment of hemp lawfully produced under the 2014 Farm Bill.”

South Dakota is at odds with that federal memo.

“Industrial hemp and all cannabis derivatives remain illegal in South Dakota and are illegal to transport through our state,” Public Safety spokesperson Tony Mangan said in a statement in August.

Technically federal law preempts state law. The case of the Colorado man transporting hemp through South Dakota may answer these legal questions.

So regardless if South Dakota allows industrial hemp production in the state, if people can transport it through the state – these tests will be required.