Rod Discusses THCa Hemp Legal Issues with CBD Oracle

Occasionally, a news organization takes the time to dig into a complicated issue and write a comprehensive and informative story. Journalist Lee Johnson did just that with THCa hemp in an article he wrote for CBD Oracle this week. The article quotes me and my colleague (and friend), Neil Willner, at length. You can read the article by clicking here.

Here’s an excerpt: 

Federal Statutes Account for THCA, But This Is Only for Pre-Harvest Testing

The most common objection to [the conclusion that THCa hemp is federally legal] is an understandable one. In the 2018 Farm Bill, it states clearly that (under Subtitle G, 7 USC § 1639p.(a)(2)(A)(ii)/PDF page 421 of 530) a state or tribal hemp production plan must include “a procedure for testing, using post-decarboxylation or other similarly reliable methods, delta-9 tetrahydrocannabinol concentration levels of hemp produced in the State or territory of the Indian tribe.”

Likewise, in 7 CFR § 990.3 it states, “The procedure must include a validated testing methodology that uses post-decarboxylation or other similarly reliable methods. The testing methodology must consider the potential conversion of THCA in hemp into THC and the test result must report the total available THC derived from the sum of the THC and THCA content.”

Federal law also mentions the common formula (7 CRF § 990.1): Total THC = (0.877 * THCA) + THC.

So doesn’t this discount basically every THCA product on the market from being hemp?

No. As international cannabis lawyer Rod Kight points out in his blog, this applies to hemp production, which means “cultivation” in the context of the federal rules.

We spoke to Rod about this, and he explained that, “The total THC standard, referred to in the 2018 Farm Bill and USDA rule as a ‘post-decarboxylation method,’ is solely required for hemp plants pre-harvest.”

This is usually where the disagreements start, so Rod gave us a detailed run-down of what federal law actually says about post-decarboxylation testing:

“Because this point is widely misunderstood I will explain it in detail. The Farm Bill only addresses ‘post-decarboxylation’ twice. In the first statutory provision, 7 USC § 1639p(a)(2)(A)(ii), it sets forth the criteria that states and Indian tribes must comply with in order to ‘have primary regulatory authority over the production of hemp’ within their jurisdictions. The second statutory provision, 7 USC § 1639q(a)(2)(B), is similar in that it sets forth the criteria that the USDA shall use to ‘monitor and regulate [hemp] production’ in states that do not have an approved hemp plan and thus do not have primary authority over hemp production within their jurisdictions. That’s it.

“The key word in both of the above provisions is ‘production.’ In the context of hemp, ‘production’ is a legal term of art. Under 7 CFR § 990.1, to ‘produce’ means: ‘To grow hemp plants for market, or for cultivation for market, in the United States.’ Additionally, 7 CFR § 718.2 defines a ‘producer’ as ‘an owner, operator, landlord, tenant, or sharecropper, who shares in the risk of producing a crop and who is entitled to share in the crop available for marketing from the farm, or would have shared had the crop been produced. A producer includes a grower of hybrid seed.’ In other words, to produce hemp means to grow it. This means that the post-decarboxylation method is required in the context of growing hemp. Once the hemp has passed the required pre-harvest testing it may be harvested. Once harvested, the sole statutory metric to distinguish legal hemp from illegal marijuana is the concentration of delta-9 THC, not ‘total THC.’ The statute is very clear about this.”

To summarize, these oft-quoted rules do place limits on hemp, but these limits only apply to the hemp prior to harvest and are not automatically applied to finished hemp products.

This means that as long as a crop tests below 0.3% THC + 87.7% THCA as many as 30 days prior to harvest, it is a “hemp” crop and anything sold from it with less than 0.3% delta-9 THC is “hemp” unless otherwise clarified by state law.

You can read the entire article by clicking here.

December 13, 2023

Rod Kight is an international cannabis lawyer. He represents businesses throughout the cannabis industry. Additionally, Rod speaks at cannabis conferences, drafts and presents legislation to foreign governments, is regularly quoted on cannabis matters in the media, and is the editor of the Kight on Cannabis legal blog, which discusses legal issues affecting the cannabis industry. You can contact him by clicking here.