7 On Your Side Investigates looked into the issue and found that many police departments are ill-equipped to differentiate between the two.
"It's going to start costing a lot of innocent people their livelihood," victim Ronen Levy said.
The NYPD booked Levy, of Brooklyn, on felony charges last fall for transporting bags of hemp for his family's CBD business. Police mistakenly thought it was marijuana.
"Right then and there, he told me I was going to be arrested," Levy said.
The NYPD even tweeted about it, praising officers for seizing more than 100 pounds of pot.
The police department said it used a field test kit that "confirmed" it was marijuana. However, when they sent the product to a lab for official testing, it showed the product had low amounts of THC, the chemical that gets you high. Prosecutors dropped the charges weeks later.
It's legal to have hemp and hemp-based CBD products in New York and New Jersey, provided it has .3% or less of THC. However, the old test kits many police departments have been using to get instant results can't tell how much THC is in a product.
It's a growing concern as hemp-based CBD is being put into many different products from candies and creams to oils and gummies. It's a multi-billion dollar industry.
Former Navy Seal officer Arthur Castiglia, of Syndicate Chemistry, sells a newer Swiss-based test to help avoid the cannabis confusion.
You put the plant based product inside the small plastic bag and shake it up, and in less than two minutes, officers can see if a majority of what's inside is marijuana or hemp, based on the color. Like the old test kits, they're then set to a lab for confirmation.
"The kit will determine whether it's illegal cannabis or legal hemp," Castiglia said. "I mean, it's as simple as that. In three months, we sold almost 100,000 kits."
Police departments in California, Virginia, and Florida have purchased the new tests, but very few have in the Northeast.
Seven On Your Side Investigates reached out to major police agencies in New York, New Jersey and Connecticut, and we found some agencies like New Jersey State Police, Newark and Yonkers police departments no longer use field test kits. The other police departments wouldn't respond to specific questions in regards to what types of tests they use, including the NYPD, Jersey City, Connecticut State Police and Westchester County police.
The US Drug Enforcement Administration responded to a request for comment, saying it has done extensive testing of field tests and found the newer tests known as "cannabis typification" tests -- like the ones Castigilia sells -- is "the only test/domestic product which aids in effectively identifying whether a suspected plant material may be marijuana or hemp."
The DEA also said it does not intent to endorse a specific product or company.
"I think they need to upgrade these test kits," Levy said. "It will save the city, the taxpayers, a lot of money, especially an innocent person like me not going to jail, and I'm sure I am not the only person that's going through this."
When buying CBD or hemp based products, experts recommend consumers buy ones that are third party lab tested. They say look for products that have a QR code on them you can scan with your cell phone, which will take you directly to the results showing what's inside the product -- including the level of THC.
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