SCRANTON — As the popularity of cannabidiol-infused products continues to grow, a Lackawanna County man warns business owners considering selling hemp flower from which the compound is derived to be wary: You could end up in jail.

Joseph Molitor, owner of the CBD Shop of Northeastern Pennsylvania, was arrested after Scranton postal inspectors flagged purported hemp flower he mailed to several customers as marijuana. He's among a growing number of people nationwide who contend they were wrongly charged because of confusion over federal legislation that legalized hemp.

Under the 2014 and 2018 Farm Bills passed by Congress, hemp and its byproducts are legal as long as the level of tetrahydrocannabinol, or THC, is 0.3% or less, which means it can't get users "high." The law defines marijuana as having a THC level of 0.5% or more.

The trouble is hemp and marijuana, which come from the same plant, look and smell alike. The only definitive way to tell them apart is to test the THC level.

Authorities do not currently have a field test available to immediately determine that, however. They test only for the presence of THC, which can lead to the arrest of legitimate business owners and hemp users, according to attorneys who specialize in cannabis law.

The issue is creating problems nationwide, the attorneys said. Within the past year, authorities in Idaho and Oklahoma seized shipments of purported hemp and arrested the truck drivers and others transporting it.

Frank Robison, a Denver, Colorado, attorney who specializes in cannabis law, said the issues arose because Congress legalized hemp without first having regulations in place to guide law enforcement on how to deal with the crop. He represents several people facing charges, including an Oklahoma man arrested for providing security to a trucking company that was transporting purported hemp.

"There is a massive misunderstanding of what is lawful and what is not lawful with respect to hemp," Robison said. "I understand it takes time to promulgate regulations, but if people are going to jail ... it's the responsibility of the government to stand up and clarify the law."

‘Crucial point'

The U.S. Drug Enforcement Agency acknowledges the legal quagmire. Earlier this year, it sought out companies to see if there is a field test available that could immediately determine the THC level of suspected marijuana.

"With the passage of the farm bill, a determination was made that 0.3% THC is the difference between hemp and marijuana," said Katherine Pfaff, a spokeswoman for the agency. "When our agents are in the field trying to identify a substance, it would be useful to them if they had another tool to help make that differentiation."

Pfaff said it's not clear yet whether that test exists.

"You have to have a test strip that is that sensitive," she said. "We are still looking at the submissions to see what is available."

In the interim, local law enforcement agencies are left to their own discretion in deciding how to handle the cases.

In Lackawanna County, prosecutors continue to pursue charges against Molitor.

Lackawanna County District Attorney Mark Powell declined to comment on Molitor's case because it is pending. Molitor's attorney, assistant public defender Daniel Lipson, said he is working to get a more sophisticated test of the seized product.

"We are still waiting on that crucial point. What is the level of THC?" Lipson said.

It is not clear yet where the product will be sent for testing. The Pennsylvania State Police crime lab tests only for the presence of THC, not the level, said Trooper Ryan Tarkowski, spokesman for the state police in Harrisburg. Lipson said he is hopeful the district attorney's office will agree to have a private lab test the product, but if not, the public defender's office will have it done.

‘Legitimate business'

Molitor, 46, formerly of Old Forge, said he hopes the issue will be resolved soon. He has been jailed in Lackawanna County Prison, unable to post bail, since June 6 as he awaits trial on two felony counts of possession with intent to deliver a controlled substance.

In a recent interview at the jail, Molitor said he was in business for about two years and sold both hemp flower and items made with CBD, which is extracted from the hemp flower. CBD-infused products, including food, medicine and beauty supplies, have become increasingly popular because of their purported health benefits.

Molitor's troubles began when he mailed packages containing a small amount of purported hemp to several customers. A employee at a Scranton post office suspected the packages contained marijuana because of the smell. Police were called and the packages tested positive for THC.

Molitor said he researched regulations before starting to sell hemp flower and thought he did everything right. He purchased the product from a grower in Oregon and included a copy of the lab analysis that showed the THC level was within legal limits. That didn't matter to police, however.

"Their position is I was sending out marijuana under the guise of hemp," he said. "They said I could put cocaine in paper and label it as baking soda. That doesn't make it legal."

A search of Pennsylvania court records shows Molitor has a prior record for assault offenses and possession of drug paraphernalia. He has never been charged with delivery of a controlled substance until now, he said. "This is a legitimate business. I have a retail license," he said.

‘Provide some guidance'

Attorney Elijah Watkins of Boise, Idaho, represents a company that also believed it did everything right.

The firm, Big Sky Scientific of Colorado, had a $1.3 million shipment of purported hemp seized in Idaho after the trucker transporting it was stopped for a traffic violation. The firm had certification that the product's THC level was within the legal limit.

The case presents a more complex legal issue than Molitor's because Idaho has not legalized hemp, even though the federal government has. The state maintains that means it's not only illegal to grow or sell hemp there, but companies from other states cannot ship their product through the state, Watkins said.

Watkins contends Idaho's position violates the commerce clause of the U.S. Constitution, which says states cannot prohibit legal goods in one state from being transported through it to another state. The case is now on appeal before the 9th Circuit Court of Appeals.

"It's a tricky situation," Watkins said. "State law is criminalizing something that is legal on the federal level ... We hope the 9th circuit can provide some guidance on this."

In Pennsylvania, Lindsay Vaughn, executive director of the Pennsylvania District Attorney's Association, said she is not aware of any hemp-related criminal cases in the state. She said the organization is keeping tabs on issues in other states and is now taking steps to address them so that they don't arise here.

"We've had discussions with drug-testing facilities on how they can quantify the amount of THC," Vaughn said. "We also are talking about the potential for regulatory changes or additional legislation to clarify the issues."

Robison, the Colorado attorney, said he believes the issues could be resolved if state or private labs that are state-certified test hemp to certify it is within the legal THC level. The product's owner would then be required to ensure each shipment could be traced back to a specific lot, which would negate the need for field tests.

"You'd know the hemp came from log a, b, c or d and was tested by the state or a state-accredited lab," he said.

‘The law catching up'

Molitor said he's confident he will eventually be exonerated.

He said he is hopeful he will be released soon on bail while awaiting trial. A bail modification hearing is set for Friday and the district attorney's office indicated it will not oppose releasing him on his own recognizance, Lipson said.

Despite being jailed, Molitor said he knows police face a difficult situation and he does not begrudge authorities for his arrest.

"It's a matter of the law catching up to private industry," he said. "There needs to be a change in the law. That's my main goal here, to shed light on it so this doesn't happen again to other people trying to operate a legal business."

Contact the writer:

tbesecker@timesshamrock.com;

570-348-9137; @tmbeseckerTT