Let’s Not Kill THCa
My colleague and friend, Tami Wahl, created the following helpful Farm Bill chart:
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THCa and the Farm Bill
There’s a lot to unpack in this chart. In this blog post, I discuss tetrahydrocannabinolic-acid, the non-psychoactive cannabinoid better known as “THCa”. From Tami’s layout it’s easy to see that while the three proposed bills have different definitions for hemp, they all require THCa levels to be included in the 0.3% THC limit. This is a drastic change, and it is a huge mistake for everyone interested in cannabis reform.
Hemp and Rescheduling
As I write this blog, I sit in the Charlotte airport awaiting a flight to Las Vegas, where I will speak at MJBizCon on a panel about rescheduling. (FYI – My panel is on Thursday at 10:50am in room N115, and it includes heavyweights Aaron Smith, Bryan Barash, Debbie Tharp, and moderator Chris Olson.) I look forward to that panel and hope to see some of you there.
As I prepare for the panel and think about the implications of rescheduling, it’s impossible to ignore a fundamental reality, namely, that “cannabis” is already mostly de-scheduled. Cannabis and all its cannabinoids, including delta-9 THC in concentrations up to 0.3% by dry weight, were completely de-scheduled at the end of 2018, when the current Farm Bill was enacted. In other words, we simultaneously watch the DEA rescheduling saga play out in the hope that marijuana and its cannabinoids will eventually be downgraded to schedule 3, while we live in a world where cannabis and all its cannabinoids were removed from the Controlled Substances Act (CSA) 6 years ago. Of course, I’m referring to hemp.
We Are Living in a Cannabis “Golden Age”
Amidst the high drama of the “cannabis civil war”, it is easy to overlook the fact that we are living in a cannabis “Golden Age” – a renaissance of cannabis reform, access, and business opportunity. There’s never been a time in history when you could legally order cannabis flower to your front door (not to mention a host of other cannabis products, including THC beverages, gummies, and vapes). It’s been almost 100 years since an individual or a small company could legally grow, manufacture, and/or sell cannabis and cannabis products across state and international lines. Today, cannabis consumers have a wealth of product choices that are sold by a wide array of distribution outlets, from dispensaries to grocery stores and consumption lounges to ecomm websites. At the same time, cannabis entrepreneurs have more options to enter the industry than ever before.
Over the past 6 years, cannabis rapidly expanded across the country, resulting in normalization in ways most people did not anticipate. This trend continues to grow.
Killing THCa Ends This Golden Era
Killing THCa ends this Golden Era. As most people who read my blog know, “THCa flower” is just “cannabis flower” that complies with the Farm Bill’s current legal definition. It’s not new. It’s not synthetic. It’s the same thing we’ve been smoking for thousands of years, and, as I write this, it is still federally lawful.
Despite all the amazing cannabis form factors to which we have access, flower remains “ground zero”, the mother of every cannabis product. For many, smoking or vaping cannabis flower is the go-to method of use. If we kill THCa, we effectively “re-schedule” cannabis and eliminate billions of dollars of legal cannabis flower from the market. Closing this so-called “loophole” in the next Farm Bill ends an unprecedented era of massive cannabis reform, normalization, business growth, and consumer choice. The idea of re-scheduling cannabis that was legalized in 2018 should be sinful to anyone who truly believes in and cares about the plant. Regardless of Congressional intent, the 2018 Farm Bill is unambiguous. It offered an opportunity to the cannabis industry. Rather than working to undo this windfall based on presumptions about what Congress did or did not want, we should embrace and expand on it. This is particularly important as we watch the DEA drag its feet by simply moving marijuana to schedule 3, a move that is important but not nearly as powerful as saving THCa and preserving the definition of “hemp”. Even better, we should expand the definition of “hemp” as proposed in Rand Paul’s hemp bill, which increases the delta-9 THC limit to 1.0% without any reference to THCa.
Let’s Regulate Hemp Properly
I’ll close this article by stating the obvious – hemp needs to be regulated properly. This is not the article to discuss regulatory issues, but those who were involved in the early days of cannabis reform remember that it took time to get regulations worked out. (Most people would argue that California and many other states went overboard in their efforts, but that’s also better suited to another article.) The point is, the hemp industry is young, and regulating any new industry takes time. Importantly, though, the hemp industry is actively pushing to be better regulated. I contend we need a structure focused on the “Three Pillars”: age-gating, safe manufacturing, and standardized labeling. To that end, the US Hemp Authority expanded its certification program to include intoxicating hemp products, and other organizations, such as American Healthy Alternatives Association, lobby for reasonable regulations. The National Cannabis Industry Association has made positive moves for hemp. It will take some time, but rather than throwing the baby out with the bathwater, we should focus on working out proper regulations.
Conclusion
Killing THCa will end the cannabis Golden Age, will set cannabis reform back in a way that may take decades to recover from, will push billions of dollars of cannabis back onto the black market, and will restrict access to millions of people. Let’s not do that.
Thanks to Tami Wahl for allowing me to share her Farm bill chart. Also, special thanks to Ashley, as always, for her amazing editorial skillz.
December 3, 2024
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 schedule a call with him by clicking here.
Would the updates destroy my farm? Yes. I would not even be able to grow the most conservative CBD flower. I am completely against these changes. However, the current regulations do have one major issue. What is currently being sold as legal THCA hemp could never be grown legally under USDA guidelines. I understand how it can be sold…but it can not be grown. All of this high THCA flower begins its life as a small plant with THC numbers that already surpass the legal limits of total THC (there is no argument here…I’ve been testing/researching plants for years). The current retail market is primarily supporting black market cultivation and not licensed hemp farms. The only way I see to close the loophole without destroying the market entirely is adding traceability. Products should have a chain of custody proving they were sourced/grown under the USDA hemp program (don’t say METRC). That’s it. Would I rather the 2018 farm bill go unchanged? Maybe. However, it is not setup for the success of legal farms and that is a huge problem. Most other hemp farms I have known over the years have closed shop. That’s not really because of a bubble or lack of investment. It’s because black market products have taken over the shelves at local stores. They have little to no interest in legally grown CBD products. Something has to change. Either trace retail products to their source… or drop preharvest testing entirely!