PRESTON — In the grey area of Minnesota's industrial hemp industry is a Lanesboro hemp grower who is being painted as either a calculating drug dealer or an unlucky farmer.
Luis "Lulu Magoo" Hummel is charged in Fillmore County District Court with fifth-degree drug sales, felony possession of a controlled substance and gross misdemeanor fifth-degree drug possession.
The charges came after products derived from hemp on Hummel's farm were seized in a March 15 traffic stop, and tested above the acceptable 0.3 percent threshold for THC content.
Hummel was not in the car at the time of the stop, but the products came from hemp he was licensed by the Minnesota Department of Agriculture to sell.
If found guilty, Hummel will be forced out of an industry he's said to be deeply passionate about. Under USDA guidelines now in place, a person with a state or federal felony conviction relating to a controlled substance is subject to a 10-year ineligibility restriction on producing hemp.
The case not only has implications for Hummel but could set a precedent for future decisions on industrial hemp. During a contested omnibus hearing in Fillmore County District Court on Dec. 17, witnesses from the MDA and Fillmore County Sheriff's Office ended up shedding light on a system overwhelmed with regulations and untrained on enforcement.
CBD or marijuana?
On March 15, Deputy Alex Hartley of the Fillmore County Sheriff's Office said he pulled over a vehicle for speeding in rural Ostrander. As he approached the window, Hartley said he noticed a smell consistent with marijuana coming from the car. When asked about the smell, the driver informed him it was coming from CBD products inside the vehicle.
Hartley said the man then voluntarily showed him each of the products, which were all labeled with Hummel's business, 5th Sun Gardens. The driver even produced documentation from the department of agriculture, stating the products were derived from legal industrial hemp and where they were tested for THC content.
But to Hartley, who said he was never trained on industrial hemp, it appeared to be marijuana.
"I specifically remember opening one of the small round containers, and even on a windy day I could smell the odor that's consistent with marijuana," he said.
Unsure what to do, the deputy called and sent photos of the products to Jesse Grabau, Fillmore County narcotics investigator. Grabau advised Hartley to seize the items.
St. Paul defense attorney Susan Johnson, who's representing Hummel, questioned Grabau on the witness stand.
"As the narcotics investigator with Fillmore County Sheriff's Office," how much training had he received on industrial hemp prior to March.
"No real training," he said.
Grabau went so far as to recall a phone call he had with Hummel in April, in which he "probably" told Hummel there was "lots of grey area" on the issue of industrial hemp.
It was a mystery at first how they would test the products for THC content, said Grabau. The field tests they currently have cannot decipher between hemp and marijuana.
So he called the Bureau of Criminal Apprehension and talked to a scientist, who told him the BCA had no test for industrial hemp either. Grabau was told later by the MDA that he would need to take samples from each item and send them to Legend Technical Services in St. Paul -- the only accredited lab in the state that the MDA works with.
A rapidly evolving job
The first witness called by the defense during the hearing was Margaret Wiatrowski, coordinator of MDA's industrial hemp program. Her testimony marked the first time the department had addressed Hummel's case directly, and also revealed how MDA personnel were stretched thin before it became entirely overburdened by the growth of the program.
Wiatrowski has worked in the industrial hemp program for three years, two of which as its only full-time employee. She managed the application process, background checks, licenses, performed nearly every sample collection and was the main point of contact for the state's licensed hemp growers.
Her job has been rapidly evolving since 2016, the first year of a pilot program, when there were six licensed growers who grew about 40 acres of hemp. Participation in the industrial hemp program increased by 27 growers in 2017, and then by 10 in 2018 to total 43 license-holders.
"This past year, there were about 380," Wiatrowski said of licensed hemp growers.
That number doesn't include the more than 150 hemp processors, who also need to gain licensing through the MDA.
The 2018 Farm Bill, which removed hemp as a controlled substance and ordered federal guidelines for U.S. hemp production, turned the gradual incline of the program to a launch.
The recent federal farm bill not only opened but held the door for commercial hemp growers to enter an untapped industry. It resulted in more than 700 license applications to the MDA, which is when Wiatrowski said it was fair to say the program "had exploded."
Lacking manpower and money
Wiatrowski was the staff member who visited Hummel's farm twice in 2018, once during growing season and again in August for an inspection of his crop.
Johnson entered several exhibits into evidence to prove that her client was properly licensed by the MDA in 2018. For each strain of hemp that passes a THC threshold test, growers are issued a Fit For Commerce certificate. Hummel was granted six certificates in 2018.
Then in March, Wiatrowski said she learned that vape tips and hemp dabs labeled 5th Sun Gardens were found to have a THC content of 3.59 and 3.11. She said it would have been impossible for Hummel to have already harvested his 2019 crop by then, meaning the products derived from his 2018 season.
Fillmore County Attorney Brett Corson, who during an earlier hearing called Hummel an "individual who knowingly manufactured and distributed drugs in the community," asked Wiatrowski how his hemp could pass a THC threshold test in 2018 and then contain 10 times the allowable THC a year later, after it had been harvested?
She said a method of processing called decarboxylation is one possible explanation. Decarboxylation means to process THCa and CBDa in cannabis to active compounds of THC and CBD by using heat. The heat causes acid in the cannabinoids to drop a carbon dioxide molecule, changing the chemical formula from THCa to THC.
Wiatrowski explained the MDA's process of taking samples for testing, in which samples are bagged, sealed and labeled by an MDA inspector before they are sent to St. Paul for testing. A cannabinoid profile analysis is then conducted and a final determination is made by the MDA based on the total potential THC post-decarboxylation.
Growers have 30 days to harvest their crop after its been sampled by the MDA (the USDA's new ruling requires 15-days), because THC content increases in plants the longer they are in the ground.
Judge Matthew Opat then asked Wiatrowski how the MDA can be sure harvested plants don't have higher THC content than what was claimed by the tested samples.
"It is an issue, and we know it's an issue," said Wiatrowski. "But we just don't have the manpower or money to be doing follow-up testing."