When the Hemp Farming Act took effect in 2019, it ushered in a new era for the state of Georgia. Illegal for decades, businesses and farmers can now grow, handle and possess this variety of the Cannabis sativa plant.

While the legalization of hemp is expected to be a boon for savvy entrepreneurs, the new law has had a side effect few people, if anyone, saw coming. It’s directly impacting how authorities are handling marijuana possession arrests.

Hemp vs. marijuana

While both are varieties of the Cannabis plant, there are some important distinctions. Mainly, hemp contains a maximum of 0.3% THC, a relatively miniscule amount compared to the levels often found in marijuana.

While chemically different, hemp and marijuana not only look nearly identical to most people, they can also smell quite similar. That means, if you see a bag of something that looks and smells like marijuana, there’s no way to immediately tell whether it’s actually marijuana or just hemp.

Why is this causing problems for law enforcement agencies? The language in Georgia’s Hemp Farming Act doesn’t explicitly prohibit individuals from possessing hemp, a report from the Atlanta Journal-Constitution explains.

Because hemp is no longer illegal, it means a law enforcement officer likely can’t arrest someone solely on the basis that person has a marijuana-like substance on them, or because the officer detects the odor of marijuana. It might be completely legal hemp.

How authorities are responding

The only reliable way to determine whether a cannabis plant is hemp or marijuana is to measure its THC levels. Most law enforcement agencies don’t have reliable access to that type of test.

Some authorities in the state have decided to stop prosecuting low-level marijuana cases as a result, according to Georgia Public Broadcasting. A police chief in Cobb County told his officers that making a misdemeanor marijuana possession arrest is simply “not recommended.” In Gwinnett County, the solicitor general announced his office would stop prosecuting minor marijuana cases.

Not everyone is taking that path. In Athens-Clarke County, they plan to hold all marijuana-like substances until the proper THC tests become available. Hall County is operating as if nothing is different.

We’re going through a period of change at the moment. This confusion may lead to someone being wrongly arrested because a law enforcement officer believes their hemp is marijuana, for example. Others currently facing possession charges may also have new options, if the arrest happened after the new law went into effect.

Whatever the case, your right to mount a criminal defense remains solid. No confusion over hemp and marijuana can change that.