THCa Flower- Minimizing Your Risk

INTRODUCTION

THCa hemp flower is making big news and transforming the cannabis industry. In conjunction with hemp-derived beverages, THCa flower is providing broad access to, and normalization of, cannabis in ways that were unimaginable a few years ago. As I’ve discussed before, progressive cannabis reformers are shifting their advocacy and focus from “marijuana” to “hemp”, both of which are “cannabis”. THCa hemp, hemp derived beverages, and other hemp products offer an alternative pathway for consumers and businesses to access the cannabis market than the federally illegal, state-regulated marijuana track. Additionally, the federal legal status of hemp means that distributors can enter hemp and hemp products into the rapidly expanding global cannabis market, something that cannot be done with federally illegal marijuana. 

Although some monopolistic corporate interests, in collusion with old school prohibitionists, seek to shut down the hemp path of cannabis reform in favor of propping up the existing state-level marijuana regulatory structures, more and more cannabis advocates and industry participants are waking up to a new vision of cannabis reform and commercialization through hemp, a vision that includes appropriate regulations. Unfortunately, and despite the rapidly growing acceptance of hemp as the path forward for cannabis policy, THCa hemp is widely misunderstood. Possessing and distributing it remain high-risk activities. In this article, I will discuss the risks and offer strategies for reducing them. To read more about THCa hemp, click here, here, here, and here. I also discuss it in podcasts that you can watch here, here, and here.  

THE RISKS

There are two primary risks associated with THCa hemp flower. The first is possessing or distributing it in a state where it is illegal. This risk can be mitigated by not possessing or selling THCa in these states. In addition to advocating for broader access to hemp products in all states, we provide ongoing advice and counsel to our clients about the legal status of THCa hemp and other hemp products under state law. We also have a 50 state hemp product spreadsheet that we maintain and provide to clients for a flat fee. Click here for more information about it. 

The second risk with THCa hemp flower is the method in which it is currently tested when seized or obtained via an undercover purchase by law enforcement. Based on our experience dealing with THCa hemp seizures, law enforcement crime labs use a decarboxylation method, such as gas chromatography (GC), to test the samples they receive, thereby converting the THCa to delta-9 THC. Invariably, and based on this improper testing method, law enforcement claims that the seized THCa hemp material is illegal marijuana, not lawful hemp. The legal arguments in opposition to this type of hemp testing are straightforward. As I discuss in depth in an article you can read by clicking here, it is clear that the use of a post-decarboxylation method, such as GC, is only required for pre-harvest hemp, not harvested material. Use of a decarboxylation testing method on harvested material converts lawful hemp to unlawful marijuana, an activity that amounts to evidence tampering. By using a testing method that decarboxylates the THCa, the crime lab literally creates the very molecule it is measuring. Unfortunately, this issue is widely misunderstood, novel, and both stressful and expensive to deal with. More often than not, a seized load or store’s inventory of THCa hemp flower is never returned to the owner. Additionally, criminal charges are often filed.  The rest of this article will discuss ways to reduce this risk.

RISK MITIGATION STRATEGIES

For Consumers– 

Do not smoke in the car or in public. As evidenced by this police bodycam video showing a violent arrest of a couple smoking a lawful THCa hemp preroll at a bus stop in Charlotte, NC, law enforcement is woefully uneducated about hemp. Unfortunately, and as the video also demonstrates, the risk is elevated for people of color. Although the charges against the couple in Charlotte were ultimately dropped and the officers suspended, the victims endured a nightmare situation despite acting completely within the law. Hopefully, this precautionary recommendation will fade away as THCa hemp becomes more understood and accepted. Currently, though, consuming in public is a high-risk activity. 

Transport THCa hemp in the trunk of your car, preferably in a cool container. Since law enforcement is mostly uneducated about the difference between lawful hemp and illegal marijuana, the appearance or smell of cannabis, including THCa hemp, can lead to a search, seizure, and arrest. Keeping it out of view and dampening the odor will go a long way towards avoiding an unwanted encounter with the police.

Do not consent to a voluntary search. In the event that law enforcement asks if you consent to a search, it is usually best to say “no”. Law enforcement might search anyway; however, if you did not consent to the search the evidence (ie, the lawful THCa hemp that the state crime lab will decarboxylate and convert into illegal marijuana) may be suppressed if the officer did not have probable cause to conduct a search in the first place. Since hemp and marijuana are both “cannabis” and can only be distinguished by a proper laboratory test (not by sight, smell, or even by a drug dog), the mere sight and/or smell of cannabis is usually insufficient to establish probable cause to search the vehicle. Notably, studies have shown that the widely used Duquenois-Levine field test, which only identifies the presence of THC, and not its concentration, “cannot be legitimately used for the prosecution or conviction of an individual for violations of the anti-marijuana laws as it does not provide proof beyond a reasonable doubt of the presence of marijuana.”

Always keep a copy of your receipt. In the event of an arrest, this will be helpful proof that you did not purchase the product from the black market. “Intent” is a critical element that a prosecutor must prove in establishing that a crime was committed. Countering this with evidence that you purchased the product from a store or ecommerce site can go a long way in showing your lawful intent. 

For Businesses– 

Create a chain of custody. In contrast to the overly-regulated, METRC-dominated world of state regulated marijuana distribution, the hemp industry does not have much in the way of an established chain of custody. While this is mostly a good thing (we don’t mandate “barley to beer” tracking, so why require “seed to sale” tracking?), it is important to have a a few chain of custody documents in place so that you can more easily prove that your THCa hemp is, in fact, lawful. Fortunately, this is straightforward. At a minimum, you should have three documents: (1) the cultivator’s state or USDA issued hemp producer permit, (2) the state or USDA pre-harvest report showing that the hemp passed the required “post decarboxylation” test that is required of all hemp before it can be harvested, and (3) a recent certificate of analysis (COA) for the actual THCa hemp flower product you are distributing showing that the delta-9 THC concentration does not exceed 0.3% by dry weight. Together, these three documents can establish that the material at issue is, and always has been, lawful hemp. Admittedly, it can be difficult to obtain the producer’s license and/or the pre-harvest test report, but they are valuable documents to have when faced with an expensive seizure and/or criminal charge. If your supplier balks, it may be because the supplier is concerned that you will circumvent her. In that case, ask for copies of the documents with the producer’s name redacted (ie, removed). For transport of large shipments it is also important to have a bill of lading and a manifest document from your attorney. This is particularly important if you are transporting the hemp across state lines, since 7 USC § 1621 subsection 10114(b) states: “No State or Indian Tribe shall prohibit the transportation or shipment of hemp or hemp products produced in accordance with subtitle G of the Agricultural Marketing Act of 1946 (AMA) (as added by section 10113) through the State or the territory of the Indian Tribe, as applicable.” It is helpful, and often necessary, to have documentary proof that your THCa hemp shipment was produced by a licensed hemp grower and was in interstate transport at the time of seizure. 

Confirm that your COAs are real. Unfortunately, COAs are often modified. “Doctoring” COAs can span the spectrum of simply changing the name on the COA from the producer’s to the distributor’s for branding purposes to changing the values of the cannabinoid percentages themselves such that a non-compliant product appears to be compliant. I recommend contacting the laboratory and asking for confirmation that the COA in your possession is accurate. In addition to knowing that you have the proper report, having a standard operating procedure (SOP) that includes confirming every COA with the lab can be helpful evidence that you are intending to comply with the law. 

Never voluntarily agree to a search. This is so important that I am reiterating it. (See above.) In every large hemp seizure I have dealt with recently, the driver consented to the search. Had the driver not consented he would have been allowed to proceed on his way or, at a minimum, his criminal lawyer could have challenged the seizure based on lack of probable cause. 

Only ship via USPS. I have been giving this advice for many years. Click here to read more. The bottom line is that USPS needs probable cause to open a package (see above for more information about probable cause), but private carriers including FedEx, UPS, an DHL, do not. If private carriers smell cannabis they will open the package and deliver it straight to local law enforcement which will have it tested by a crime lab using a method that decarboxylates it. From there, law enforcement will retain the hemp and may even press charges. Additionally, USPS has a specific regulation regarding the mailability of hemp. USPS is not perfect, but it is a significantly better option than using private carriers. 

Use a purchase/sale contract with a the risk of loss in transit provision. This is the most overlooked way to mitigate risk of loss with THCa hemp shipments. Any good contract involving the shipment of goods, whether the goods at issue are THCa hemp buds or running shoes, contains a “risk of loss” provision that spells out who bears the financial loss in the event that the shipment is lost, damaged, or seized. Too often, I am contacted by someone whose THCa hemp was seized in transit but there is no contract which specifies who is financially responsible. This is easily corrected by having a solid contract. 

CONCLUSION

In conjunction with the rapidly emerging hemp beverage sector, the THCa hemp flower market may be the final straw that breaks the back of a century of regressive cannabis policy. That being said, THCa hemp is currently the most widely misunderstood and risky sector of the hemp industry. Using the above strategies will not eliminate the risks, but they may hemp to reduce negative outcomes. Feel free to contact us if you have questions about THCa hemp. Note: We are a business and regulatory compliance law firm and do not practice criminal law; however, we routinely consult with criminal attorneys regarding the hemp-related legal issues their clients face. 

December 30, 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.