Missouri AG Wrong on THCA
The Missouri Attorney General (AG) recently sent out a slew of letters regarding “Illegal Hemp Sales to Missouri Consumers”. Unfortunately, the AG misstates the law, at least when it comes to tetrahydrocannabinolic-acid (THCA). You can read the letter below.
The AG correctly states that the sole distinction between legal hemp and illegal marijuana is the concentration of delta-9 THC, which cannot exceed 0.3% for hemp.
However, the AG letter is incorrect in claiming that THCA is part of the calculation for determining whether harvested hemp or hemp products are lawful. This is because the Missouri hemp statute solely references “delta-9 THC” and does not mention THCA, “total THC”, or “post-decarboxylation”.
Given that Missouri law does not address THCA at all, it is clear that the AG is relying on recent letters from the DEA in support of its position that the concentration of THCA must be taken into account when determining the legal status of harvested hemp and hemp products. I have written about the DEA letters here and here. However, since this is an ongoing source of confusion, I’ll address it again in this article.
The statute that the AG cites in support of his position that hemp products must account for THCA solely applies to hemp “producers”, which federal law defines as “growers”. In other words, hemp growers must account for THCA before harvesting their hemp crops. Thereafter, the THCA concentration does not matter under federal law or the laws of Missouri and the “post-decarboxylation” test does not apply to harvested hemp or hemp products sold by wholesalers or retailers.
In the statutory provision that the AG cites, 7 USC § 1639p(a)(2), Congress sets forth the criteria that states must comply with in order to “have primary regulatory authority over the production of hemp” within their jurisdictions. As an aside, Missouri does not have primary authority over the production of hemp since it does not have a plan approved by the USDA. (A list of USDA-approved hemp plans is here.) Hemp production in Missouri is thus regulated directly by the USDA, which makes this particular provision completely irrelevant to the AG’s point. That being said, the USDA rules do require a post-decarboxylation test for hemp “production”, so I’ll continue in my analysis.
The key word in the above provision 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.” To produce hemp means to grow it.
The post-decarboxylation test clearly applies to producers, ie, hemp growers. However, once the pre-harvested hemp has accounted for delta-9 THCA and passed the required post-decarboxylation test, it may be harvested and no further tests are required. For this reason, the AG is wrong with respect to hemp that has been harvested and to hemp products when he states that “the decarboxylation process converts delta-9 THCA to delta-9 THC, meaning delta-9 THC concentration of hemp products must account for any present delta-9 THCA.” (emphasis added)
Regardless of how many times I address this issue, it continues to confuse law enforcement and regulators. For this reason, plus the widespread use of improper testing by law enforcement, distributing THCA hemp bears risk.
Here’s the AG’s letter:
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Thanks to hemp lobbyist Eapen Thampy for encouraging me to write this article. We have previously posted an article by Eapen, which you can read here.
As always, this article is not intended to be legal advice and nothing in it should be construed as legal advice. You can contact us for a personalized discussion of the risks you may face distributing hemp products and the best practices for mitigating it.
June 5, 2025
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.
Have there been any THCA Flower cases that have made it to a trial yet? I’ve followed some over the years and haven’t seen any outcomes. It seems so simple to explain, that I would suspect a jury would understand the plain language if it was properly conveyed to them. The industry is so large and widespread now that it’s crazy to think it is illegal.
Hi, Thomas. Good question. As of today’s date, I am unaware of any THCA-specific cases that have completed. This is a new and novel legal issue, and I anticipate that we’ll be seeing cases in the upcoming years. -Rod
How do you account for 7 CFR 990.3(a)(3), 990.26 and 990.27 in your analysis?
Under both state and USDA plans, cannabis that fails pre-harvest testing must be destroyed and not enter the stream of commerce. THCA skeptics note that almost all of the THCA flower on the market could not pass legitimate pre-harvest testing for Total THC content. Is it your position that a seller of THCA flower could actually know the flower they are selling was extracted from a plant that failed pre-harvest testing, or bogus pre-harvest testing, and they are in the clear because the Farm Bill and USDA regs only apply to hemp producers?
Jane,
Thanks for your questions. First, with respect to how I account for 7 CFR 990.3(a)(3), 990.26 and 990.27 in my analysis, that is the basis of the DEA’s stance regarding THCa and I address it in depth here and here. The bottom line is that those provisions only apply to “producers”, which are defined in the law as growers. Once the required pre-harvest post-decarboxylation test has been passed a producer may harvest the hemp crop and no further tests are mandated. With respect to harvested hemp, the Farm Bill’s definition of “hemp” solely references “delta-9 THC”, without reference to THCa or “post-decarboxylation” as the legal metric for distinguishing between hemp and marijuana. Additionally, the definition of “hemp” includes its “acids”. THCa is an acid.
Regarding this question, “Is it your position that a seller of THCA flower could actually know the flower they are selling was extracted from a plant that failed pre-harvest testing, or bogus pre-harvest testing, and they are in the clear because the Farm Bill and USDA regs only apply to hemp producers?” Out of an abundance of caution and also to support the integrity of the hemp industry, I do not advise clients to knowingly distribute cannabis that has not been grown by a licensed hemp producer, even if it meets the legal definition of “hemp” (ie, D9 does not exceed 0.3%). That being said, harvested cannabis flower with D9 levels that do not exceed 0.3% clearly meets the definition of “hemp”.
Rod