Virginia Judge Tosses Charges for CBD Flower

A judge in Virginia tossed a court case after a state lab said it couldn’t tell the difference between cannabis and hemp-derived CBD products that can be bought in stores.

During a traffic stop, officers claimed they smelled cannabis when Robert Mason, who claimed to purchase the CBD flower at a gas station, gave the product to the officer and provided a receipt. The officer field-tested the product, which came back positive and Mason was given a ticket, even though documentation from the store showed a THC percentage of 0.28 percent, less than the 0.3 percent threshold to classify hemp as cannabis.

“There’s nothing illegal. My sister is freaking out. I told her look, ‘we’re good. I purchased it at a store. I have the receipt. Everything is cool.’ Turns out, it wasn’t,” Mason said. “His specific words was (sic), ‘it looks like a duck, it sounds like a duck, it’s a duck.’”

Mason was initially convicted in General District Court but Jay Breneman, the defense attorney on the case, appealed the case to Hanover County Circuit Court. Judge Overton Harris asked the supervisor from the state’s Richmond lab if he could tell if the product was purchased at a gas station, which he said he could not. The judge then ruled “not guilty” on the case. The judge’s decision was a victory for Mason, who faced jail time for possession of something legal under federal law.

Many stores in Virginia sell hemp flower, which was legalized at the federal level with the passing of the 2018 Farm Bill. Virginia then passed emergency legislation to amend the state’s hemp laws to match the Farm Bill. More than 800 growers have registered to grow hemp in Virginia with the Virginia Department of Agriculture and Consumer Services.

As the popularity of CBD products continues to grow, officers are having trouble distinguishing legal hemp and CBD from illegal cannabis. Many government-run forensic labs aren’t capable of determining the exact amount of THC in most CBD or cannabis products.

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