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.
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.