When the U.S. Farm Bill passed last year and made hemp legal it marked a sea change in perceptions on the plant and was a major step for the cannabis industry to capitalize on the meteoric rising popularity of CBD. But the new law also created some unforeseen legal challenges, particularly with police struggling to tell the difference between marijuana and legal hemp.

Each individual state is entitled to come up with their own hemp and CBD laws, and Texas, which notoriously has some of the strictest cannabis laws in the country, legalized hemp in June. However, because law enforcement in the Lone Star state isn’t equipped with the ability to test the difference between pot and hemp it essentially, by accident, decriminalized cannabis altogether.

The key factor in separating the two species — hemp and marijuana — is the level of tetrahydrocannabinol (THC) levels must be below 0.3 per cent for a plant to be classified as hemp. The two plants look and even smell the same, but Texas police do not have the testing equipment to test for THC to verify the difference.

Because of the dilemma, district attorneys across the state haven’t prosecuted minor level marijuana crimes in the last two months. But the Texas Forensics Science Commission is working with federal authorities to come up with a new way to test for THC that could be available to prosecutors by early next year.

The commission, along with the federal Drug Enforcement Agency, is looking at how to best test for THC concentrations, and they came up with a 1 per cent level to identify the difference between legal hemp and marijuana. It determined using the sharp cutoff of 0.3 per cent could pose problems, as Texas allows medical programs where patients can possess CBD oil with up to 0.5 per cent THC concentration.

Considering how most marijuana today has a concentration of 10 per cent THC or higher, the 1 per cent cut the Texas government believes is a suitable cutoff. State authorities will determine if this new method of testing will work before issuing new guidance to crime labs throughout Texas.

If Texas is not able to get its testing method for legal hemp and marijuana approved by 2020, there are private companies the state could utilize for testing.

Austin-based Ionization Labs has a machine called CannID, which can offer a precise breakdown — even identifying a concentration of THC that’s below 0.3 per cent.

“CannID not only allows us to process materials, oils and flowers, but it allows us to report very accurately the breakdown of all cannabinoids in percentages,” said Chase McMichael, chief science officer at Ionization Labs.

The company has contracts already with businesses in Kentucky, Oregon and several other states to test hemp crops and hemp derived products. It said it already offered to conduct tests for the Texas crime labs, or lease them the equipment.

But the state is aiming to have its own in-house cutting-edge technology, which could be more cost effective strategy.

Given the number of potential hemp and marijuana users in not only Texas but across the country, the need for a reliable and affordable roadside test is still needed anywhere hemp is legal. Otherwise, consumers of legal hemp could still be at risk of being arrested until confirmation can be made of whether the substance they’ve been carrying or using has in fact been hemp or marijuana.

Unless marijuana is legalized in the U.S. federally, which may not happen for years or at all, these issues will likely continue coming up.