THCa Deja Vu
A friend sent me an article this morning from Marijuana Moment that discusses a May 13, 2024 letter to my friend and colleague, attorney Shane Pennington, regarding the legal status of THCa. Apparently, Shane reached out to the DEA inquiring about the status of THCa. In its response, by Dr. Terrence Boos, the DEA’s Chief of its Drug and Chemical Evaluation Section, states:
“In regards to THCA, Congress has directed that, when determining whether a substance constitutes hemp, the delta-9 THC concentration is to be tested “using post-decarboxylation or other similarly reliable methods.” 7 USC § 1639p(a)(2)(A)(ii); 7 USC § 1639q(a)(2)(B). The “decarboxylation” process converts delta-9 THCA to delta 9 THC. Thus, for the purposes of enforcing the hemp definition, the delta-9 THC level must account for any delta-9-THCA in a substance. Accordingly, cannabis derived THCA does not meet the definition of hemp under the CSA because upon conversion for identification purposes as required by Congress, it is equivalent to delta-9 THC.“
This is almost verbatim what Dr. Boos said in a June 9, 2023 letter about THCa that I blogged about almost a year ago. You can read that letter and my response here. In short, the DEA is correct with respect to pre-harvest hemp testing, which requires a post-decarboxylation (ie, total THC) test, but the DEA is incorrect with respect to harvested cannabis material. This is because the two statutes it cites in support of its position are the only two places in the Farm Bill that discuss “post-decarboxylation”. They are both in the context of hemp “production”, which is defined as cultivating hemp. Once the mandatory pre-harvest testing is completed, a hemp crop may be harvested if it passed the test. Thereafter, the statute solely refers to “delta-9 THC”, not “THC” or “post-decarboxylated delta-9 THC” or anything else. The statute just says “delta-9 THC”. In fact, the DEA has said as much on many prior occasions. (See, eg, here.) To be clear, this is a brief summary since I’ve already addressed this issue in depth. I encourage you to read my article from last summer for the more in-depth analysis.
In addition to what I discussed in last year’s blog article, the legal definition of “hemp” includes its “acids”. All cannabinoids in their acidic forms contain a carboxylic acid group that degrades (ie, converts) to a different compound when subjected to a “post decarboxylation” testing method. In other words, using a post-decarboxylation method to test harvested hemp degrades the pertinent acids in the hemp plant, rendering the term “acid” superfluous. It is elementary that a statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant. For this reason any interpretation of the 2018 Farm Bill that would require a post-decarboxylation test for harvested hemp renders the term “acid” superfluous and is thus contrary to the plain language of the statute.
Given that this has been the DEA’s stated position for almost a year and that I rebutted it last Summer, it is difficult to understand why the issue is circling back around again today, like some sort of deja-vu. My best guess is that this is because THCa hemp is dominating the cannabis industry- both the “hemp” and “marijuana” sectors.
Click here to read the DEA’s most recent letter.
I don’t expect that the THCa issue will die down anytime soon. In the meantime, my primary goal is to reduce the misunderstandings about it. We spend a considerable amount of time these days advising clients about THCa and engaging with regulators to educate them. I remember the days when CBD was treated the same way. Although it seems like another era altogether, it was less than 10 years ago that the DEA and many regulatory agencies thought that hemp-derived CBD was an illegal controlled substance. Hopefully, broad positive changes in the understanding of THCa’s legal status will eventually be the case as it was with CBD.
May 27, 2024
(Photo By Ben Wright)
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.
If cannabis is rescheduled to 3. What will that mean for the hemp industry. Along with the cannabis industry. Would we do away with these synthetic cannabinoids?
Jonathan,
Good question. Since hemp is already completely descheduled moving marijuana to schedule 3 will not affect hemp.
Rod
Just a quick note that THCa is not a synthetic cannabinoid. Unlike Delta-8 that can arguably be called synthetic when converted from CBD, THCa is naturally occurring, and has never been synthesized or converted commercially AFAIK.
Thanks, Jonathan. That’s exactly correct. THCa is expressed by the plant, not created synthetically. -Rod
You know I hold you in the highest regard, so please take this as my seeking clarity.
It is my understanding that ALL cannabis plants, during cultivation, i.e. pre-harvest, are inherently high in THCa and low in Delta-9 THC (i.e. decarboxylated THCa).
While it certainly is biologically feasible to engineer a grow window during which THCa would be below .3%, even the most sophisticated cultivators testify that this window is extremely narrow; downright impossible to systematize into a repeatable process; and thereby renders futile any efforts at scaling a grow operation which reliably yields product that meets this threshold.
For this reason, it is an inescapable certainty that the enforcement of post-decarboxylation testing pre-harvest absolutely equates to a death knell for THCa.
Admittedly, I am not on the production side, only the distribution side (and the digital ecomm realm at that), but my capability for market research is one which has served me well over the years.
This leads me to conclude that, in order to save THCa (an objective to which you have devoted much heart and effort), your “3 Pillars” must be expanded to include efforts at abrogating post-decarb testing. There is no future for THCa which includes post-decarb, pre-harvest testing.
James,
Thanks for your thoughtful question and comments. I am not a producer, either, but am fortunate to represent some of the best growers in the world. Based on my discussions with them (and I’ve been down the “rabbit hole” on this issue), it is difficult but not impossible to pass a post-decarboxylation pre-harvest test and have an end product (ie, flower) that has high levels of THCa but with delta-9 THC concentrations within the 0.3% limit. Of course, abolishing the “post decarboxylation test” altogether would be a huge boon for the industry. However, based on my many and deep conversations with producers I do not think this is necessary. This is a good thing since I do not think we will see abolition of the post-decarboxylation test. Time will tell…
Rod
Thanks for the reply, Rod. The question was pertaining to the pre-harvest, post-decarb testing threshold for ( (THCa x .877) +D9 ) concentrations that together combine in excess of .3%; i.e., the “Total THC” metric that is the interim rule. Even if this threshold were to be raised to 1% Total THC, if it is measured post-decarb in pre-harvested flower, would equate to a prohibition of THCa flower. (At least based on my layman’s research.)
James,
Thanks for the clarification, but you and I were talking about the same thing. I stated: “Based on my discussions with them (and I’ve been down the “rabbit hole” on this issue), it is difficult but not impossible to pass a post-decarboxylation pre-harvest test and have an end product (ie, flower) that has high levels of THCa but with delta-9 THC concentrations within the 0.3% limit.”
Rod