What’s the Difference Between Hemp and Marijuana?

What’s the difference between hemp and marijuana?

In SC, one difference is that marijuana is still illegal, with or without a medical prescription, while hemp is legal.

Unfortunately, police may not know how to tell the difference between the two:

Truckers, now free to haul hemp from state to state, have been stopped and sometimes arrested by police who can’t tell whether they have intercepted a legal agricultural crop or the biggest marijuana bust of their careers. That’s because the only way to distinguish hemp and marijuana, which look and smell alike, is by measuring their tetrahydrocannabinol, or THC, and officers don’t have the testing technology to do so on the spot.

What is the difference between hemp and marijuana, how can you tell them apart, and what is currently legal in SC?

What’s the Difference Between Hemp and Marijuana?

Hemp and marijuana are two species of the cannabis plant. Hemp is cannabis. Marijuana is cannabis. But hemp is not marijuana.

Cannabis can be either indica or sativa, and marijuana can be either indica or sativa, but hemp is always a type of cannabis sativa.

There are subtle differences in the plants’ appearance, but the main difference between hemp and marijuana is the THC content of each plant – whereas marijuana has a THC content of anywhere from 15% to 40% and will definitely get you high, hemp typically has a THC content of .3% or less and will not get you high.

Do Hemp and Marijuana Look Different?

They do if you know what you are looking at…

Hemp has skinnier leaves that are mostly at the top of the plant. It also grows taller than most marijuana plants and can easily grow as tall as 20 feet.

Although some sativa strains of marijuana can grow quite tall, most marijuana plants are shorter and thicker with broader, dense leaves with buds in the center (the buds are the part that people smoke after they are dried and cured).

Anyone who is familiar with the anatomy of the two plants can tell them apart – presumably, police officers should also be able to tell them apart with some training on the appearance of the plant…

What’s the Difference Between Hemp and Marijuana’s Smell?


Like pine trees, cedar trees, fruits, bushes, and flowers of all kinds, the smell is determined by terpenes – different strains of cannabis have different types of terpenes, but the odor is similar. In most cases, you can’t distinguish hemp from marijuana based on the plants’ smell.

What’s the Difference Between Hemp and Marijuana’s Chemical Makeup?

As I noted above, hemp should have a THC content of .3% or less, while the THC content of marijuana should be off the charts in comparison – marijuana with a THC content of 15% or less would be weak marijuana that the grower would have a hard time selling…

Besides the obvious physical difference between hemp and marijuana, narcotics officers should be able to test the THC content of the plant to confirm whether it is legal or illegal.

Better yet, we could just make marijuana and hemp legal for all purposes and save them the trouble…

Is Hemp Legal in SC?

Hemp and CBD (cannabidiol) are legal.

Although, until recently, there was vigorous debate about whether the hemp plant or CBD extracted from the hemp plant were legal under federal and SC state law, the 2018 federal Farm Bill resolved at least some of the confusion.

The 2018 Farm Bill:

  • Legalized industrial hemp under federal law wherever it is legal under state or tribal laws;
  • Removed industrial hemp from the Controlled Substances Act; and
  • Authorized the transportation of hemp across state lines.

Hemp farming is legal in SC, but you must get a permit from the SC Department of Agriculture in advance and permits are limited (for 2019, the state authorized only 40 permits from a total of 162 received).

What is CBD (Cannabidiol)?

CBD is a chemical found in both marijuana and hemp that is non-psychoactive (it does not get you high). It does have beneficial effects, however, and, depending on who you ask, its benefits range from minor pain relief or relief from some illnesses like epilepsy to a wonder-drug-cancer-cure.

One of the many, many uses of the hemp plant is the extraction of CBD for use in oils, tinctures, and edibles (food infused with CBD).

Is CBD Legal in SC?

CBD has always been legal in SC – SC Code Section 44-53-110(27) defines marijuana as:

(i) all species or variety of the marijuana plant and all parts thereof whether growing or not;

(ii) the seeds of the marijuana plant;

(iii) the resin extracted from any part of the marijuana plant; or

(iv) every compound, manufacture, salt, derivative, mixture, or preparation of the marijuana plant, marijuana seeds, or marijuana resin.

This would include CBD that is extracted from marijuana, but the law goes on to specifically exclude cannabidiol (CBD) that is extracted from the seeds or stalks of the marijuana plant:

(b) “Marijuana” does not mean:

(i) the mature stalks of the marijuana plant or fibers produced from these stalks;

(ii) oil or cake made from the seeds of the marijuana plant, includingcannabidiol derived from the seeds of the marijuana plant;

(iii) any other compound, manufacture, salt, derivatives, mixture, or preparation of the mature stalks (except the resin extracted therefrom), including cannabidiol derived from mature stalks;

(iv) the sterilized seed of the marijuana plant which is incapable of germination.

The FDA, however, has not approved CBD for use in edibles, and the SC Department of Agriculture agrees:

“CBD is completely legal, but when you put it in a food it changes the definition, so a gummy bear or chocolate coffee or drink anything that’s sold with CBD oil added into it no longer allows that food to be defined as a food it actually puts it to another realm,” said Derek Underwood, Assistant Commissioner for the South Carolina Department of Agriculture.

Bummer. What does that mean?

Not much – the “FDA police” won’t be showing up at your door to arrest you and confiscate your CBD edibles, if you were worried about that…

Marijuana Defense Lawyer in Charleston, SC

Charleston, SC marijuana defense attorney Grant B. Smaldone accepts criminal defense cases in the Charleston, Dorchester, Georgetown, and Myrtle Beach areas of SC. If you’ve been charged with any marijuana offense in South Carolina, including:

Call now at (843) 808-2100 or send us a message for a free consultation about your case.