Is Hemp Legal in Florida?

Florida law has a complicated scheme for distinguishing between cannabis, medical marijuana, hemp / industrial hemp, tetrahydrocannabinol (THC), and cannabidiol (CBD). Given that scheme, is hemp legal in Florida?

The short answer is “yes.” Florida had a choice between creating a hemp industry or allowing officers to continue to make low-level marijuana arrests. With unanimous bipartisan support, the Florida legislature chose an industrial hemp program, and a Republican Governor signed the bill into law.

The passage of Florida’s State Hemp Program (2019 CS/CS/SB 1020) on July 1, 2019, dramatically changed how judges and prosecutors view these cases.

As a result, criminal defense attorneys in Florida are telling their clients with dwindling cannabis cases to fight until the charges are dropped or dismissed. Prosecutors have begun announcing that they will no longer prosecute these cases.

Now that hemp is legal in Florida, prosecutors are being forced to drop these cases because of the practical problems in getting past motions to suppress before trial or the evidentiary issues at trial.

And even if the prosecutor was able to overcome those hurdles, jurors are reluctant to convict anyone for a marijuana crime now that hemp and medical marijuana are legal in Florida.

Bad Sniff Searches – It All Smells the Same

Many of these cases involve the smell of marijuana, leading to the search or seizure of the evidence. The legalization of hemp in Florida (under both state and federal law) effectively negates probable cause for marijuana-related offenses since cannabis and hemp smell the same. The nose of an officer or a K-9 can not distinguish between low-THC hemp and high-THC cannabis.

State Attorney Jack Campbell in Florida’s Second Circuit recently wrote a letter explaining why he will not authorize search warrants involving an officer or K-9’s smell of marijuana (because it might be hemp).

This same logic should apply when a criminal defense attorney files a motion to suppress an illegal search based on the same type of sniff or smell search.

No Presumptive or Field Tests to Distinguish Between Hemp and Cannabis

For law enforcement officers and prosecutors, these new hemp legalization statutes created a problem. No good way currently exists for officers to differentiate between cannabis (which is illegal) and hemp (which is legal). To seize the cannabis as evidence, law enforcement officers need a presumptive or roadside test that is scientifically reliable to establish probable cause.

The prosecutor’s letter also explains why his office is no longer prosecuting most marijuana crimes until a reliable field test (often called the presumptive test) can be developed to distinguish cannabis with high levels of THC from hemp with less than .03 percent of THC by dry weight. That problem might lead to the court throwing out evidence because of an illegal arrest that lacked probable cause.

No Lab Tests to Prove the THC Concentration

Even if law enforcement officers can overcome that hurdle, a second problem exists because the prosecutor needs full quantification testing for trial and an expert who can explain the test results in a way that complies with the Daubert predicate. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 585 (1993).

The prosecutor’s letter also explains the problem with finding cost-effective lab testing to determine whether the THC level is actually over or under .03 percent by dry weight.

Florida’s State Industrial Hemp Program

Hemp became legal under state law in Florida when the Florida Legislature passed 2019 CS/CS/SB 1020. The legislation authorized the Florida Department of Agriculture and Consumer Services to create a state industrial hemp program to administer and oversee hemp’s sale, processing, handling, and cultivation. See Section 581.217, F.S.

The new legislation revised the legal definition of “cannabis” under Section 893.02(3), F.S., to exclude “hemp” and “industrial hemp.”

To further complicate matters, the legal definition of “marijuana” as defined in s. 381.986, was separated from “cannabis” if the substance was manufactured, possessed, sold, purchased, delivered, distributed, or dispensed in conformance with s. 381.986, F.S., [the Compassionate Medical Cannabis Act of 2014].

Likewise, the Agricultural Improvement Act of 2018 (2018 Farm Bill) legalized the industrial use of hemp under federal law and removed it from the U.S. Drug Enforcement Agency’s list of controlled substances.

Section 581.217(3)(e), F.S., defines the term “hemp” to mean:

…the plant Cannabis sativa L. and any part of that plant, including the seeds thereof, and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers thereof, whether growing or not, that has a total delta-9-tetrahydrocannabinol concentration that does not exceed 0.3 percent on a dry-weight basis, with the exemption of hemp extract, which may not exceed 0.3 percent total delta-9-tetrahydrocannabinol on a wet-weight basis.

Section 581.217(3)(f), F.S., defines the term “hemp extract” to mean:

“a substance or compound intended for ingestion, containing more than trace amounts of cannabinoid, or for inhalation which is derived from or contains hemp and which does not contain other controlled substances.”

The term does not include synthetic cannabidiol or seeds or seed-derived ingredients generally recognized as safe by the United States Food and Drug Administration. Section 581.219(3)(f), F.S.

Products that are intended for inhalation and contain hemp extract may not be sold in this state to a person who is under 21 years of age. Section 581.217(7)(d), F.S.

The department was required to seek federal approval of the state plan for regulating the cultivation of hemp with the United States Secretary of Agriculture (USDA) under the requirements of the 2018 Farm Bill within 30 days of adopting rules. Section 581.217(4), F.S.

A license is required to cultivate hemp, and to obtain a license. Additionally, a person must apply to the department and submit a full set of fingerprints. Section 581.217(5)(a)-(b).

A person seeking to cultivate hemp must provide the department with a legal land description and GPS coordinates of where the hemp will be cultivated. Section 581.217(5)(d), F.S.  Under some circumstances, the department must deny the application.Section 581.217(5)(e), F.S.

Why Does Florida Have a State Hemp Program?

On Tuesday, June 25, 2019, Gov. Ron DeSantis signed legislation authorizing Florida’s state hemp program. With unanimous bipartisan support, the legislation created an industrial hemp program to be managed by the Florida Department of Agriculture. The program will regulate the licensing and cultivation of hemp.

Florida’s state hemp program follows after the 2018 federal Farm Bill, allowing states to establish hemp programs. As explained in a statement released by Agriculture Commissioner Nikki Fried:

“Tonight’s hemp bill signing marks a transformation in Florida, and a critical step on the journey to creating a green industrial revolution, strengthening agriculture with an alternative crop of the future, and expanding access to safe, quality CBD products….

…Florida has the potential to become the gold standard on hemp — our deep agricultural heritage, climate and resources, and farming infrastructure will make Florida a national leader in this emerging new economy.”

Holly Bell was appointed as Florida’s first Director of Cannabis to oversee the department’s hemp program.

Retail Sale and Distribution of Hemp Extract

Under Section 581.217(7), hemp extract may only be sold or distributed in Florida if the product has a certificate of analysis prepared by an independent testing laboratory that provides:

• The hemp extract is the product of a batch tested by the independent testing laboratory;
• The batch was processed in a facility that meets certain human health or food safety requirements;
• The batch does not contain contaminants unsafe for human consumption; and
• The batch contained a total delta-9-tetrahydrocannabinol concentration that did not exceed 0.3 percent according to the testing of a random sample of the batch.

Furthermore, the hemp extract may only be distributed or sold in a container that includes:

• A scannable barcode or quick response code linked to the certificate of analysis of the hemp extract batch by an independent testing laboratory;
• The batch number;
• The Internet address of a website where batch information may be obtained;
• The expiration date; and
• The number of milligrams of each marketed cannabinoid per serving.29

Other provisions of Section 581.217(7) require the container to:

• Not be attractive to children;
• Mitigate exposure to high temperatures;
• Be composed of materials designed to minimize exposure to light;
• Be suitable to contain products for human consumption;
• Be compliant with the United States Poison Prevention Packaging Act of 1970.

Under Section 581.217(3)(a), F.S., the phrase “attractive to children” is defined to mean:

• manufactured in the shape of humans, cartoons, or animals;
• manufactured in a form that bears any reasonable resemblance to an existing candy product that is familiar to the public as a widely distributed, branded food product such that a product could be mistaken for the branded product, especially by children, or
• containing color additives.

If CS/SB 1698 becomes law, changes will be made to Section 581.217, F.S., the State Hemp Program because it redefines “hemp extract” to prevent it from containing synthetic or naturally occurring versions of controlled substances listed in s. 893.03, F.S. Those substances include:

• delta-8-tetrahydrocannabinol
• delta-10-tetrahydrocannabinol
• hexahydrocannabinol
• tetrahydrocannabinol acetate
• tetrahydrocannabiphorol
• tetrahydrocannabivarin

The proposed legislation also defines “total delta-9-tetrahydrocannabinol concentration” to mean a concentration calculated as: [delta-9-tetrahydrocannabinol] + (0.877 x [delta-9- tetrahydrocannabinolic acid]).

What is Florida’s Legal Definition of “Industrial Hemp”?

Cannabis has been cultivated for more than 10,000 years as a fiber and grain crop. The term “industrial hemp” means cannabis used primarily for fiber and building materials.

The 2014 Farm Bill, Agricultural Improvement Act of 2014, Pub. L. No. 113-79, s. 7606, 128 Stat. 912 (2014) (codified at 7 U.S.C. s. 5940), defined “industrial hemp” as:

…the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.

In the 2018 Farm Bill, the U.S. Congress removed hemp’s classification as a controlled substance by legalizing “industrial hemp” as an agricultural product. See Agricultural Improvement Act of 2018, Pub. L. No. 115-334, s. 12619, 132 Stat. 409 (2018) (codified at 21 U.S.C 802(16)).

The 2018 Farm Bill defines “hemp” similarly to the 2014 Farm Bill. See Agricultural Improvement Act of 2018, Pub. L. No. 115-334, s. 10113, 132 Stat. 409 (2018) (codified at 7 U.S.C. s. 1639o).

How Hemp Impacts Florida’s Legal Definition of Cannabis

Cannabis or marijuana is classified as a Schedule I controlled substance as provided in Section 893.03(1)(c)(7), F.S. Under Florida law, “cannabis” is defined to mean:

all parts of any plant of the genus Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin.

Under Florida law, it is still a third-degree felony for cannabis to be:

• sold;
• manufactured;
• delivered; or
• possessed with intent to sell, manufacture, or deliver.

The possession of a small amount of cannabis is a first-degree misdemeanor, although in some jurisdictions, the officer has the discretion to issue a civil citation instead. But now, hemp is not included within the definition of cannabis.

What is Florida’s Legal Definition of Medical Marijuana?

Not only is hemp not included in Florida’s definition of cannabis, but neither is medical marijuana. In other words, the term cannabis does not include “marijuana,” as defined in s. 381.986, if the marijuana is manufactured, possessed, sold, purchased, delivered, distributed, or dispensed in conformance with s. 381.986, F.S., [the Compassionate Medical Cannabis Act of 2014].

Under Florida law, the legal definition of “medical marijuana” now includes two distinct forms of the plant genus Cannabis:

• Marijuana without any limitation or restriction on the percentage of THC;
• “Low-THC cannabis” in which the percentage of THC is limited to 0.8 percent or less and has more than 10 percent of cannabidiol by weight (Section 381.986(1)(e) and (f), F.S.)

What is Cannabidiol (CBD)?

The term “cannabidiol” or “CBD” refers to a particular chemical compound found in cannabis. The psychoactivity of CBD is different than THC.

Another problem is that CBD contains a small percentage of THC, which is impossible to remove entirely. The percentage will vary between approximately 3% and 10% depending on the source. For this reason, if a person uses CBD, their lab report will often show some carboxy-THC metabolite, depending on how much the person has used, timing issues, and the CBD preparation itself.

What is Tetrahydrocannabinol (THC)?

THC, or tetrahydrocannabinol, is the main active ingredient in cannabis. THC is the main psychoactive constituent of cannabis.

This article was last updated on Monday, January 8, 2024.