GREENVILLE, S.C. — Top Hat Tobacco and Cigar owner Todd Smith was on his way out of town July 13 for a rare day off when his phone rang. A friend manning the store for him was on the other end, and told him Anderson County deputies were in the shop to confiscate its smokable hemp.
Smith pleaded his case to the deputies over the phone, but ultimately, the officers left with about two pounds of hemp worth thousands of dollars.
"It was a big surprise to us," he said. "They're lumping it in the category with marijuana, but the South Carolina Department of Agriculture defines it as scientifically a different plant."
According to an incident report, the deputies went to Top Hat in reference to the "illegal sale of marijuana," and asked if the store sold hemp flower, as advertised on its front window. When Smith's friend showed them four jars filled with smokable hemp, which the report refers to as a "green, leafy, plant-like substance," officers confiscated them and informed the employees the product was "illegal to sell to the public."
The report lists the incident type as the "unlawful sale of marijuana," but no one was charged, and Smith said he was not selling marijuana.
The seizure came three days after the state Attorney General's Office issued an opinion regarding raw hemp to the State Law Enforcement Division, sending shock waves through the state's hemp community.
The opinion stated a license is required to legally handle raw hemp and confirmed processed hemp, or hemp products, are legal without one. But it didn't define the difference between raw and processed hemp, saying to do so was beyond the scope of the office.
The seizure at Top Hat the second such incident involving the Anderson County Sheriff's Office in the wake of the attorney general's opinion, according to Sheriff's Office spokesman Sgt. J.T. Foster. The first happened July 12 at the Canes Corner convenience store in Piedmont. The same group of deputies confiscated hemp flower from the store, and no one was charged in that incident either.
In an emailed statement sent Monday, Foster said deputies responded to Canes Corner after receiving reports the store was selling marijuana cigarettes to children.
Foster would not comment on whether the two incidents were isolated or if the Sheriff's Office would continue to confiscate smokable hemp. Two phone calls to Anderson County Sheriff Chad McBride were not immediately returned.
But according to Robert Kittle, a spokesman for the Attorney General's Office, the opinion leaves it unclear whether the smokable hemp, or flower, Top Hat and Canes Corner were selling is illegal.
"Nothing in our opinion addresses CBD Hemp Flower specifically, so whether that's illegal without a license is a question of fact that would have to be determined by law enforcement," he wrote in an emailed statement.
For weeks, hemp vendors across the Upstate say they've decided to pull the smokable product from their stores out of fear law enforcement will take it.
SLED spokeswoman Kathryn Richardson declined to comment on whether her agency was confiscating smokable hemp in the state.
"We feel the opinion speaks for itself," she said.
The Greenville News has filed a Freedom of Information request with SLED for incident reports and warrants stemming from any and all hemp seizures made by the agency so far this year.
Greenville County Sheriff's Office spokesman Lt. Ryan Flood said his agency was not seizing hemp flower from stores.
The uncertainty now sweeping through South Carolina's burgeoning hemp and CBD industry - a tightly knit group of farmers, vendors, and customers - is one more episode in a saga of regulatory uncertainty that's been playing out since the state legalized the crop in 2017.
Hemp is a relative of marijuana, but contains only trace amounts of tetrahydrocannabinol, or THC, the psychoactive chemical in its illegal cousin, and will not get you high.
A state law passed in 2017 legalized hemp and its derivative cannabidiol, or CBD, and established a pilot program that permitted 20 farmers to begin growing the crop.
The hemp and CBD trade has since exploded across the state. At least six CBD stores opened in Greenville between October and March, offering products such as CBD oils, edibles, and tinctures, as well as smokable hemp, which has been growing in popularity. Convenience stores, markets, and other vendors have also started to offer the product.
President Donald Trump signed a bill last year legalizing hemp on a federal level and in April, Gov. Henry McMaster signed legislation expanding on the 2017 state law.
The law passed in April did away with the state's pilot program and allowed the state Department of Agriculture to issue hemp growing licenses to more farmers. It also prohibited anyone without a license from cultivating, handling or processing raw hemp.
Since then, the SCDA has issued 94 more licenses, bringing the total number of hemp farmers in South Carolina to 114, according to agency spokeswoman Eva Moore.
On July 10, the Attorney General's Office sent its opinion to SLED after the agency asked for guidance on the raw hemp provisions of the new legislation.
While the opinion confirms a license is required to handle raw hemp, it doesn't clarify what is legally considered processed hemp, creating confusion around what stores are and aren't legally allowed to sell.
The law itself defines processing as, "converting an agricultural commodity into a marketable form."
Emily McSherry, founder of South Carolina-based Cannabis Forward, contends hemp flower, such as that taken from Smith's shop and the Piedmont convenience store, easily meets that broad definition.
The smokable hemp offered at Top Hat and by other hemp vendors is typically heated, cured, and dried by licensed processors before it's sold to stores. That method changes the chemical composition of the plant, and differentiates it from raw hemp, which refers to the planted or freshly cut crop and its seeds, McSheer said.
"It is not just they cut it, they put it in a bag and it naturally dries on its own," she said. "That would be raw hemp. But it's actually processed. A human is involved in converting it from a fresh flower to a dry flower."
Law enforcement has struggled to distinguish between smokable hemp and marijuana. Special THC measuring equipment is necessary to determine which is which. Where as before hemp was legalized, officers only had to test for the presence of THC, now they have to test for the amount, which requires more sophisticated gear.
Foster said that's created challenges for deputies in the field.
"The problem with this type of incident is that (if) it smells like marijuana, looks like marijuana, and field tests for the presence of THC, we must act as it is marijuana and make a seizure," he said in an emailed statement sent Monday morning.
Greenville County's drug lab recently purchased about $150,000 in new equipment for that purpose, and created a new position to operate it, according to James Armstrong, Greenville County's chief criminalist. Maintenance and salary will likely cost the county between $80,000-$100,000 per year going forward.
But Smith said the Anderson County deputies who confiscated his hemp only tested for the presence of THC and not the concentration.
Lee Ford, who operates a 30-acre hemp farm in Central, was one of the first 20 farmers in the state's pilot program. He said the popularity of smokable hemp is rising among people who use the crop to treat a variety of ailments, from anxiety to chronic pain.
"For us, flower has become the financial go to," he said. "It started out as (CBD) oil and then flower gained momentum. Flower is what people started buying so that's what really started pushing the market."
He said he's put substantial resources into growing a high-quality, smokable product, and much of his business comes from selling hemp in its flower form. The Attorney General's opinion has left him uncertain what the future holds for his business.
"We've sold flower, we've sold prerolls, we've sold other items, and now we're not able to do that in our own state," he said. "We have to go outside of the state to be able to do that."
After learning about the Attorney General's opinion, Smoke n' Brew pulled all smokable hemp products from its locations, two in Greenville and one in Charleston, according to the store's co-owner Chuck Floyd.
McSheer said vendors and growers throughout the state have done the same and are starting discussions to consider legal action against the state and law enforcement related to the seizure of hemp flower.
While McSheer said she disagrees with some law enforcement agencies' interpretation of the law, she's still advising vendors to keep smokable hemp out of their stores until the issue has been settled.
"If I owned a store, until I had clarification that I was not going to be raided or I had a really good attorney, I probably wouldn't be selling it right now," she said. "And that's sad. Hemp is a growing agricultural commodity in our state and has the opportunity to bring a much needed boon to our farmers."
Stanley Holcombe, owner of Anderson-based Electric City Vapor, said he plans to follow that advice. Hemp Mine, one of Holcombe's wholesale providers, reached out to him after the opinion was issued and offered to trade the hemp flower they sold him for CBD oils, tinctures and edibles - an offer he gladly accepted. His other provider, Mighty Panda, gave him a refund for the smokable hemp he bought from them.
Holcombe said he understands hemp flower presents a challenge for law enforcement, but he hopes the situation stabilizes quickly.
"It makes it tougher for them to crack down on actual marijuana abuse," he said. "But at the same time, I think it's crazy that they're taking sealed packaging off the shelves."