How Is This Not Hemp? Peeking Under the Hood at a THCa Hemp Flower Production Facility
We receive calls every day about tetrahydrocannabinolic acid (THCa). Specifically, clients are calling about what has become known as “THCa Hemp Flower” or “THCa Flower.” Simply put, THCa Flower is harvested cannabis material containing high concentrations of THCa (usually between 10-20%) and no more than 0.3% delta-9 tetrahydrocannabinol (D9 THC) by dry weight. As I have argued since early 2021, THCa Flower is not a controlled substance under federal law or the laws of many states. Despite its clear legal status under federal law, THCa Flower remains misunderstood and controversial. For that reason, I took to the field, literally and figuratively, and toured a THCa Flower production facility in my home state of North Carolina. This article reports on that visit and further discusses THCa Flower’s lawful status. I also raise some of the legal risks that producers and distributors should be aware of when dealing with THCa Flower.
For more background, context, and general information on THCa Flower, click here. Additionally, I discuss THCa Flower on two podcasts that you can access by clicking here and here.
Rod Visits A THCa Production Facility
I toured a dedicated THCa Flower cultivation facility near my hometown of Asheville, NC. The tour was facilitated by my client, Apotheca. (Thanks to Lee and the Apotheca team for arranging my visit.) The hemp producer, whose identity I will keep anonymous as requested, had been working on THCa Flower for almost a year before my visit. Much of that time was spent in research and development because growing a hemp plant for its THCa-rich flowers requires passing a pre-harvest analytical test that satisfies the “post-decarboxylation method”, commonly referred to as the “total THC test”, mandated by the USDA. In other words, and as most readers are aware, the plant must be tested for its concentrations of both D9 THC and THCa. (The specific formula is THCa(%wt.)× 0.877+D9 THC(%wt.) The resulting figure, “total THC”, must not exceed 0.3% in order for the plant to be harvested. This begs the question, “Can a hemp plant that passed the total THC pre-harvest test produce consumer-ready flowers that have high levels of THCa?” Answering that question was the primary reason I visited the hemp grow operation. I wanted to know if it could actually be done, and discovered that the answer is, “Yes.”
Through a careful and systematic process, the hemp producer grows a hemp plant that passes the pre-harvest total THC test, harvests it within the legal timeframe, then dries, cures, and trims it under extremely controlled conditions. The end result is a batch of cannabis flowers meeting the statutory definition of “hemp” under both federal law and the laws of North Carolina. (It is important to know that THCa Hemp Flower is not lawful under the laws of all states. In other words, it may be illegal in your state.)
The Pertinent Documents
Here are the hemp producers’ redacted USDA permits. (North Carolina did not propose a hemp plan so the USDA regulates hemp production directly in the state.)
Here is one of several of the pre-harvest “total THC” analytical tests of the producer’s crop that I reviewed. The image is slightly blurry. The pertinent figures are: Total THC: 0.165%, Delta-9 THC: ND (ie, non-detectable), THCa: 0.189%.
Here is the post-harvest test for the same crop that passed the total THC pre-harvest test, above. The image is slightly blurry. The pertinent figures are: Total THC: 16.11%, Delta-9 THC: 0.11%, THCa: 18.28%.
As these documents show, the USDA-permitted hemp farmer grew a hemp crop that passed the required USDA test. Once that compliant hemp was harvested, cured, dried, and trimmed, it yielded hemp flowers that meet the statutory definition of “hemp” under the 2018 Farm Bill and the laws of the state in which it was grown. This begs another question:
How is this not hemp?
THCa Flower Has Been Lawful for Many Years, But Risks Remain
I have been arguing that the above situation occurs with hemp, and that it is legal, for many years. (See articles here and here.) Although it may seem counterintuitive, the fact is that THCa Hemp Flower is, and has been, lawful under federal law and the laws of many states for years. I remember when the hemp industry faced a hypothetical issue in 2019 about whether or not harvested hemp that passed required tests under the state regulations in place when it was grown, and was thus lawful under federal and existing state laws, would suddenly become illegal upon passage of new state regulations that took into consideration total THC in post-harvest material. The answer was clearly, “No.” Today’s discussion of THCa Flower is simply another iteration of this issue. It is coming to public awareness in another form, likely due to the effects of current hemp flower products with noticeably high THCa levels.
Despite the obvious lawful status of THCA Flower under federal law and the laws of many states, it remains misunderstood, controversial, and risky. A deep discussion of the nature of the risks involved with THCa Flower and ways to mitigate the risks is beyond the scope of this article, but it is important to identify the largest risks: (a) a lack of knowledge of the product and how it is regulated, which leads to misapplication of the law by government authorities, and (b) the use of gas chromatography (GC) testing by law enforcement state crime labs, which decarboxylates (ie, chemically converts) THCa in the sample to D9 THC. In other words, regulators are sometimes mistakenly asserting that the “total THC” analysis applies to both pre-harvest and post-harvest cannabis material, even in situations and under regulations when it clearly does not. Additionally, the GC testing used in state crime labs literally converts THCa Hemp Flower into illegal marijuana by creating the very molecule (D9 THC) that it is measuring.
I hope this article has been helpful in clarifying a big question that underlies much of the current misunderstanding regarding THCa Hemp Flower, namely, “can it be done?” The answer is clearly, “Yes.” Hemp was first legalized in 2014, and again in 2018. Given all that time, it is frustrating that this issue remains controversial, although it is not surprising given that current THCa Hemp Flower is competing favorably with cannabis flower produced in regulated marijuana markets. In any event, the stakes are high for THCa Hemp Flower, and hemp in general, this year since the US will enact a farm bill that will address, and potentially redefine, hemp. It is important to let your representatives know your thoughts and positions.
Please contact us if you have any questions about THCa Hemp Flower or other hemp-related legal issues.
April 18, 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 hemp matters in the media, and is the editor of the Kight on Cannabis legal blog, which discusses legal issues affecting the hemp industry. You can contact him by clicking here.
9 comments on “How Is This Not Hemp? Peeking Under the Hood at a THCa Hemp Flower Production Facility”Add yours →
I appreciate your efforts, as THCa from hemp is agreed upon that it is legal, however, you are being duped to think type I pure THC flower can be grown as hemp. This misinformation is dangerous to spread for hemp operators that think they can plant Type I THCa seeds and pass a compliance test, they will lose their entire crops and potentially businesses thinking so.
This is black market cannabis distributing this flower. One simple lie to a distributor that it is “hemp”, and all the sudden every block has been turned into a trap store to peddle their (often unsafe) black market cannabis.
This article and facility you visited, is a hemp producer doing what they can to stay in business due to the fact that the hemp industry has been taken over by black market marijuana ever since you published your first THCA flower article and wrote opinion letters to shady characters (Reddit-banned vendors I will not name but you can Google)
Here is the proof:
1. In the preharvest coa, it has 3%~ CBDa already, and neglible THC. This is typical of a real high CBD hemp strain. In the post harvest COA, you will see the CBDa content is lower than it was on the preharvest test. This is impossible.
If this was a type I strain that was tested, it would be growing the dominant cannabinoid THCa instead of CBDa, even at the compliance test level. The “total THC” would be similar to the total CBD, around 2-3%, 10x above the compliant threshold.
CBDa does not turn into THCa while growing, thus, the post harvest COA is not the same strain as what was tested.
This hemp producer was dishonest with you. It’s hard to blame them however, because no one wants CBD flower anymore. Most of the market wants pure “THCa” flower, which is predominately being distributed by well-known vendors that have committed fraud (editing coas or lying about sources of flower) in the past back in 2018-2019 that caused them to be black listed from certain hemp communities on Reddit. These are the vendors that are now in the spotlight with tons of “THCa” flower, the ones being enriched from a market that can only exist on fraud, while other legitimate producers struggle to survive and/or close down.
There are very few strains that can be grown legally as hemp with elevated THCa levels (2-4%), and those are definitely not predominantly THCa, like this post harvest sample 10%+ THCa and 0% CBD.
I also found it very odd that the CBD was higher in the pre harvest sample than the post harvest sample. I don’t have the experience to make judgements from it, but it’s definitely odd.
Bill and Andy,
Thank you for your thoughtful comments. I completely agree with you that industry fraud is highly concerning and does not promote the interests of the hemp industry. I vigorously support (and create legal theories about) hemp and hemp interests. As soon as I read Bill’s comment I reached out to the hemp producer. Here is the response:
“The samples that are taken for compliance under the usda are randomly selected from multiple different plants in the designated lot and sent to the lab. The lab homogenizes the sample and tests it. So the compliance sample is a mixture of multiple plants thought out that lot. Post harvest is a singular sample tested. So I other words it’s not the exact same plant that is tested for compliance and then again for post harvest testing.”
In other words, the USDA pre-harvest samples pull from various plants and a homogenous sample is created. That multi-plant homogenized sample, while coming from the same lot and representative of the lot as a whole, is different from the specific flowers that have been harvested weeks later from plants in the lot, dried, cured, and trimmed. This accounts for the CBDA discrepancies that you understandably raise.
My point remains, which is that hemp grown by a licensed producer, which passes the required USDA “total THC” test, is harvested and its flowers meet the statutory definition of “hemp”, is lawful.
Again, thank you for taking the time to raise these important issues. I hope that my response clarifies and resolves this issue.
Thanks for the follow up. I also am a huge proponent for the hemp industry. My concern, which I think many of us share, is that “bad actors” or misunderstandings will screw it all up. Strangely, this unexpected journey on the path out of prohibition has brought new products to the market that probably wouldn’t have existed otherwise. Without this bifurcated market and the state vs federal divide, CBD flower, Delta 8, CBG, and many other products may have never existed in any quantity. So my hope is that we can complete the journey to full legalization while still keeping all of these alternative products on the market, and also that the hemp market allows smaller players to thrive. As much as I’m a proponent of the state legalization movements, in many states there are 5 huge corporations controlling the supply with the support of the government through limited licensing, and I think that’s not ultimately the future we want to see.
So in summary, I think the market and product breadth coming from hemp continues, and bad actors or ignorance don’t screw it up.
Probably preaching to the choir here, but wanted to get out my perspective. Cheers.
You and I are on the same page. I completely agree with you about the new products likely not existing if it were not for the bifurcated system and also that many (most?) of the state marijuana programs promote an unfair monopoly. Finally, the bad actors definitely threaten to bring down the industry. I am fortunate to have clients who care about making safe, quality products, voluntarily age-gate, and support reasonable regulations. Unfortunately, not everyone acts this way. I appreciate your follow-up.
This reasoning from the farm leaves me with a lot of doubt. The samples for the preharvest test were Type 3, CBD dominant plants. The samples in the post harvest test are Type 1, THC dominant plants. You would not be able to randomly reproduce this result from a single seed lot. You would have to know which plants are type 1 vs type 3, get preharvest to test the type 3 then postharvest test/only sell the type 1 as “THCa” flower.
Hi, Brandon. Thanks for chiming in. I appreciate your input because I know for a fact that you are an expert on these matters. I posed your question to the producer, who responded:
“I’m not saying that we don’t have multiple different variety’s grown in each individual lot that is tested by the usda. The usda will allow you to test multiple varieties as a singular lot. This has its pluses and minuses. Some of the pluses are it’s cheaper to test multiple strains as one. One of the drawbacks is that if your lot tests hot you have to destroy everything. When going from a single seed lot you can still have a lot of cannabinoid variance because of how unstable most seed stock is, especially if they are f2 seeds. You are going to have a vast array of different phenotypes/genotype when running from seed which can also account for different cannabinoids being present. When they test for compliance again they are taking multiple samples from multiple different plants to homogenize and test all together. Post harvest testing is a single gram of flower from one plant tested. We don’t take samples from each variety grown in that registered lot to homogenize and test together post harvest so it’s not the same exact sample that is tested for compliance.”
Obviously, there are some questions about all of this, including whether the USDA’s allowance of multiple varieties in a single lot is appropriate and whether there is any meaningful connection between a pre-harvest lot compliance sample and a single post-harvest sample of a bud from the lot. However, the point of my article is not to address these issues, but rather to show that under current laws and regulations THCa flower can lawfully be produced. In other words, this producer complied with the applicable laws and regulations and produced federally-lawful (and NC-lawful) “hemp” with high THCa concentrations.
Of course, I’m always happy to discuss this with you.
The producers response concerning multiple varieties being tested as a single lot is not true…quite the opposite. According to the guidelines…
A “lot” is a contiguous
area in a field, greenhouse, or indoor growing structure containing the same variety or strain of cannabis throughout.
Those tests are definitely from different lots and varieties. As a licensed perpetual grower deeply entrenched in this industry (6 years in hemp and 26 in cannabis), I can say with absolute confidence that it’s not possible to grow high thca flower under the USDA program as it stands today…in any state. Just this year, I have tested at least 150 different varieties and hundreds of labs. I truly wish it was possible without some level of subterfuge! It’s like being able to sell salsa but not being able to grow tomatoes. Yay us.
Just smoke it yo!