Nathan Howard grows many varieties of cannabis at East Fork Cultivars, his farm in Takilma, Ore., an unincorporated community of 378 people on the state's southern border.
In one field, he grows a variety of pot called Kush Petals. In another, he grows hemp. Good luck telling them apart.
"We're growing adult-use cannabis on one side of the fence, and 50 feet away we're growing a plant that looks literally the same," says Howard. "In aroma, in the way it smokes, the way it turns into ash, it's indistinguishable."
That's a problem for the sheriff in Josephine County, who can't tell the plants apart either. And by extension, it's a problem for Oregon's embattled adult-use cannabis industry—because it makes cracking down on black market weed harder.
In December 2018, the federal government legalized hemp—which contains trace amounts of THC, the intoxicating ingredient in cannabis, but not enough to get users high. That created mass confusion among Oregon law enforcement agencies trying to stop the cultivation and out-of-state sale of black market pot—because they don't have a reliable way to test the THC content of plants that cross the border and therefore cannot distinguish between pot, which may not cross state lines, and hemp, which can.
The Oregon State Police Forensic Services Division, which once provided testing of plant samples suspected by law enforcement of being cannabis, announced in July it would no longer do so, because the tests "could not quantify THC, which is the difference between hemp and marijuana," says Timothy Fox, spokesman for OSP. "So we stopped doing the test, as there was no scientific or evidentiary value in the test."
The decision by the state police has left local sheriff's offices in limbo. Oregon cops already struggle to contain a thriving illicit market, which sells weed for much cheaper than licensed growers, who are subject to intense rounds of testing and product approval.
Hemp provides even more cover for black market growers, cannabis industry sources tell WW. Several suspect illicit pot is regularly grown and exported as hemp.
"You can stick a thousand pounds of marijuana in the back of a truck, call it hemp and drive it across the state without any tagging, nothing," says Mike Getlin, a licensed cannabis cultivator who owns a farm in Clackamas County.
"The passing of the Farm Bill and legitimizing mainstream hemp have given a whole new open door for [illicit growers] to walk through."
For Oregon, a state poised and eager to become a leading hemp producer and exporter, last year's Farm Bill federally legalizing hemp was a landmark victory. An estimated 62,000 licensed acres of hemp are being cultivated in Oregon.
But for illicit pot growers, it's another way to mask their grows. And the illicit market appears to be doing well.
A bleak 2018 report by the Oregon High Intensity Drug Trafficking Area program hinted at the vastness of the illicit market: From 2015 to 2018, $48 million worth of Oregon cannabis was shipped to at least 37 states.
Law enforcement in Southern Oregon counties already gets flooded with complaints of possibly illegal cannabis grows. Jackson County Sheriff Nate Sickler says his department receives anywhere from 10 to 15 complaints a week of suspicious grows.
To criminally prosecute, law enforcement must prove through testing that illicit growers are cultivating plants containing THC levels above a certain threshold.
"When it comes to a court situation, if the prosecuting attorney needs to prove it's marijuana, we'd need to test it," says Sheriff Chris Kaber of Klamath County.
In fact, it is often difficult to prove pot is pot. Law enforcement can still send plant samples to independent labs to test for THC content, but farmers say those labs can produce faulty results, too—sometimes even for the same sample of plant. Nathalie Bougenies, a hemp lawyer, says lab results that inconsistently measure THC levels are a "major concern" for the law enforcement end of the industry.
"If the lab goes to court, and the credibility of the lab is questioned, it might not meet court standards," says Sickler.
Prior to the state police halting testing, says Kaber, the state's five labs and their results were readily accepted in court cases because of a long-standing and trusted partnership with county law enforcement. Now, with independent labs forced to bear the brunt of the testing, court proceedings are more ambiguous.
Beau Whitney, owner of Whitney Economics, says the parallel legal and illegal markets result in the state's reallocation "of law enforcement resources away from cannabis because of hemp."
"Policymakers don't have enough data to understand what's going on, and they don't know what they don't know," says Whitney. "When regulators don't know, then people can leverage that ambiguity in those gaps in the system."
It's hard to know the scale of illicit grows in Southern Oregon, where forest is thick and police are scarce. Kaber says he sees hemp popping up all over Klamath County, and he's heard rumors from suspects they arrest that hemp growers are now disguising pot plants in hemp fields.
"You've got a legal market masking an illegal market," says Kaber. "Why wouldn't they hide it in hemp fields?"
But law enforcement readily admits this isn't a top priority. Kaber calls the choice between directing police efforts toward illicit cannabis or opioids and meth an easy one.
"With limited resources and limited funds, we have to make choices from time to time," says Kaber. "Meth, heroin, fentanyl—that's the higher priority than people growing illegal weed."
Some growers don't care if the black market flourishes. Grower Nathan Howard says criminalization of any cannabis, legal or not, is based on a "fact-free, racist characterization of the plant."
Other farmers are torn. Even those who know illegal grows hide under hemp to undercut their prices have a hard time rooting for police to conduct pot busts.
"The farmer in me who's spent his life savings on his farm says yes, we should be doing more," says Getlin. "But the citizen who has watched marijuana prohibition destroy lives, especially in marginalized populations, says no."