THCa Flower- The Next Big Thing in Hempland?
Note: A version of this article was reprinted with permission in the December 2022 issue of Vapor Voice, which you can read by clicking here. -Rod Kight
As a cannabis lawyer I represent lots of companies in the hemp industry, and I am routinely asked legal questions about new and novel products. In 2015 our calls were primarily about CBD. Within a couple of years, we started receiving calls about smokable hemp. Lately, we have been inundated with calls about delta-8 THC and delta-10 THC, about which we wrote the legal opinion letter for the Hemp Industries Association (HIA). Most recently, our “new and novel” inquiries have been about various cannabinoids- HHC, THCP, THCO, etc. We even joke at the office that “D9 is the new D8” since this year the most well-known cannabinoid, delta-9 THC (D9), is quickly becoming a major showcase in hemp products. With this background in mind, we are suddenly receiving lots of calls about “THCa hemp flower”. In this article I will discuss THCa flower and several legal and practical issues regarding it.
What is THCa Flower?
THCa flower refers to cannabis buds marketed as hemp. These buds are intended for smoking or vaping. They contain high concentrations of tetrahydrocannabinolic acid (THCa) and low concentrations of D9. Specifically, their D9 levels do not exceed 0.3% by dry weight. For example, I recently viewed a certificate of analysis (COA) of THCa flower that showed 25% THCa and 0.18% D9. This is remarkable for a few reasons. Despite that this flower is federally lawful hemp, smoking it will get you very high. In fact, this “total THC” profile is very much in line with cannabis flower sold in regulated marijuana markets. This is because the advertised “THC” values for flower in regulated marijuana markets is almost always “total THC”, meaning the sum of D9 plus 87.7% of the THCa. This is technically written as: THCa(%wt.)× 0.877+∆9THC(%wt.) (Note that this well-used formula may be flawed, at least with respect to finished products, an issue that does not impact the analysis in this article but which may ultimately impact the industry at large.)
Recently, I reviewed a COA for a sample of Durban Poison, one of the most popular marijuana strains. It is typically advertised as having THC concentrations between 15%-25%. The THC concentrations in the Durban Poison COA I viewed were 20.67%, right in line with what would be expected for this strain. Of that total amount of THC, the D9 level was only 1.24%. The rest of the THC was in the form of THCa, which registered at 22.15%. This profile is typical for marijuana flower. “THC” that is advertised in marijuana almost always refers to total THC, of which THCa is usually found in the highest concentrations. Although THCa does not have an intoxicating effect when ingested, the reason this total THC profile is acceptable to marijuana smokers is that THCa converts to D9 when heated in a chemical process called decarboxylation. Smoking or vaping creates sufficient heat to convert some of the THCa to D9.
In summary, THCa hemp flower is no different from marijuana flower currently sold in medical and recreational marijuana dispensaries in states with regulated marijuana markets.
Is THCa Flower legal?
The short answer is, “Yes”, at least under federal law and the laws of some states. But do not stop reading here! CONTINUE READING for important caveats and legal risks!
The idea that there are legal hemp buds that are no different from illegal marijuana buds seems counterintuitive, but proving that this is true involves a very straightforward analysis. The 2018 Farm Bill distinguishes legal hemp from illegal marijuana solely by reference to its D9 levels. Specifically, hemp is cannabis with no more than 0.3% D9 by dry weight. So, a hemp bud with THCa levels of 20% and D9 levels of 0.15% falls squarely within the 2018 Farm Bill’s definition of “hemp” and is legal under federal law.
In fact, the DEA specifically agrees that cannabis material meeting this definition is lawful. In a letter written to my colleague and friend, Shane Pennington, on January 6, 2022, the DEA states: “material that is derived or extracted from the cannabis plant such as tissue culture and any other genetic material that has a delta-9 tetrahydrocannabinol concentration of no more than 0.3 percent on a dry weight basis meets the legal definition of “hemp” and is thus not controlled under the CSA.” This is not the first time the DEA has confirmed that the sole factor distinguishing lawful hemp from unlawful marijuana is its D9 concentration. In addition to confirming this standard in both a letter to the Alabama Board of Pharmacy and a public statement to the Florida Department of Agriculture and Consumer Services (both of which can be viewed by clicking here), the DEA’s Interim Final Rule regarding hemp states that marijuana is limited “to only include cannabis or cannabis-derived material that contain more than 0.3% delta-9-tetrahydrocannabinol (also known as D9 -THC) on a dry weight basis.”
In summary, harvested cannabis flower with D9 concentrations not exceeding 0.3% meets the legal definition of “hemp” and is not controlled under federal law, regardless of its THCa levels.
What About Total THC?
The obvious response to the above analysis is, “What about the USDA requirement that hemp must pass a test prior to it being harvested to ensure that its total THC concentrations do not exceed 0.3%?” In its Laboratory Testing Guidelines issued on January 15, 2021, the USDA requires a “total THC” test for pre-harvest hemp: “Tests shall measure the total THC concentration in a sample submitted to a laboratory for analysis. The laboratory will perform chemical analysis on the sample using postdecarboxylation or other similarly reliable methods where the total THC concentration level considers the potential to convert delta-9-tetrahydrocannabinolic acid (THCA) into THC.” Additionally, in its Final Rule regarding hemp production, the USDA mandates that a pre-harvest hemp compliance test take into account the “potential” THC in a sample by requiring the test to take account of the “total THC, derived from the sum of the THC and THCA content, shall be determined and reported on a dry weight basis.” Based on the USDA’s requirement for total THC testing, it seems that hemp flower with high THCa levels should not be lawful, right?
The answer is, “Not necessarily”. The USDA rule only applies to hemp production, which means hemp cultivation. The USDA does not regulate hemp once it has been harvested and its testing regulations do not apply to hemp that has been harvested. Provided that a pre-harvest hemp sample passes the “total THC” test, it is lawful hemp, regardless of the THCa concentrations present in the harvested material. Interestingly, the DEA and the USDA seem to be at odds about this issue. As discussed above, the DEA does not seem to care if the cannabis material was grown by a licensed hemp grower or whether it even passed a pre-harvest test. In stark contrast to the USDA, the DEA solely relies on the D9 concentrations of cannabis materials in determining their legal status, regardless of whether they passed a USDA pre-harvest test, or even if they were tested at all before harvesting.
In any event, and regardless of this inter-agency dispute, the fact remains that harvested hemp is not subject to the total THC standard under federal law. The only metric that matters is the concentration of D9. I have discussed this issue at length, including the various ways in which a hemp bud from a compliant hemp crop can have total THC levels in excess of 0.3%, in an article you can read by clicking here.
What Are the Major Legal Issues with THCa Flower?
Although THCa hemp flower is lawful under federal law, there are some important issues and considerations to be aware of. The rest of this article will discuss these issues.
Is it possible to grow compliant THCa flower?
One issue is whether THCa flower, at least with the high THCa concentrations discussed at the beginning of this article, can come from hemp grown in compliance with the USDA total THC requirements. Compliant THCa flower may be theoretically possible, but this does not mean it actually exists in the real world. Consider a physics example: although absolute zero can technically exist, it has yet to be attained in a laboratory setting. THCa flower may be like absolute zero – lawful in theory but unattainable in the real world due to the testing limitations described above. I am fortunate to represent some of the best cannabis growers and geneticists in the world. I asked some of them about this issue. Most seem to think it is unlikely that a plant with THCa concentrations in the 20% zone will pass a pre-harvest USDA total THC test, regardless of the genetics or the testing methods used, though they do not rule out the possibility. At least one of them offered that perhaps compliant hemp flower could be sprayed with THCa extract.
It is important to reiterate that the DEA considers all cannabis material with D9 levels not exceeding 0.3% by dry weight to be lawful “hemp”, regardless of whether or not it was grown by a licensed hemp producer and/or if it passed a USDA total THC pre-harvest test. As I mentioned above, this disagreement between the USDA and the DEA is an unsettled area of law.
What About State Laws?
Another issue is whether THCa flower is lawful under state law. The answer depends on the state in question. It is absolutely clear that you can lawfully transport THCa flower through a state, regardless of its hemp laws. This is because the 2018 Farm Bill states: “[N]o State or Indian Tribe shall prohibit the transportation or shipment of hemp or hemp products produced in accordance with subtitle G of the Agricultural Marketing Act of 1946 (as added by section 10113) through the State or the territory of the Indian Tribe, as applicable.” But individual states may restrict or even downright prohibit it. THCa flower is completely lawful in some states, such as North Carolina, which does not contain a “total THC” standard for hemp in any of its statutes or regulations. On the other hand, THCa flower is restricted in some states, such as Oregon, which use a “total THC” standard for post-harvest hemp. The legal status of THCa flower in some states can be tricky to determine due to the way that their hemp laws and regulations are written. For instance, under Pennsylvania’s hemp plan a permitted hemp processor may only receive or use cannabis material that passes a total THC test. However, this rule only applies to permit holders. Since retailers of finished hemp products are not required to have a hemp permit, the total THC requirement does not appear to apply to them.
In summary, the laws and regulations of a given state determine the extent to which THCa flower is lawful. This can sometimes be difficult to determine, which leads to the final issue: confusion and misunderstanding of hemp laws.
What if THCa is Lawful in My State but Law Enforcement Disagrees?
A final issue to consider is confusion by law enforcement and state regulators about the legal status of THCa flower. Many people in the hemp industry, including some hemp lawyers, contend that hemp flower is only lawful if it passes a “total THC” test. As discussed above, this is wrong under federal law and the laws of some states. Given that this issue is confusing even to experienced hemp lawyers, you can imagine its misunderstanding is compounded by law enforcement and even regulators, many of whom do not know or care much about (or for) hemp. In practice, this means that someone lawfully selling THCa flower may experience problems, including prosecution, from law enforcement. When seized and tested using gas chromatography (GC), the standard for most state crime labs, THCa flower will show very high D9 levels. This is because GC heats up the sample sufficiently to decarboxylate the THCa and convert it to D9. When this occurs, it is possible that the retailer will be charged with trafficking marijuana. Aside from experiencing the stress and expense of being charged with a crime, it is also possible that the prosecution and the judge will not understand the subtleties of the law, and the retailer will be found guilty, regardless of the fact that THCa is lawful in the jurisdiction. I believe in the justice system and do not want to imply that a criminal prosecution will always go wrong in this scenario; however, it is important to understand that this is a novel and complicated legal issue and there is no guarantee that things will go the right way in a criminal trial.
Conclusion
THCa flower is poised to be the “next big thing” in Hempland. As discussed above, THCa flower is lawful under federal law and the laws of some states. However, before deciding to participate in the emerging THCa flower market it is very important to understand the issues and risks involved. At Kight Law we counsel clients on the laws and regulations regarding THCa flower and many other legal issues impacting hemp industry leaders. You can contact us by clicking here.
IMPORTANT NOTE: This article is not intended to be legal advice and should not be used as such. The matters discussed are novel and involve complicated and unsettled legal issues. Before making any decisions regarding THCa you should first consult with an experienced attorney.
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.
Great article Rod. I appreciate how you articulated the nuances between USDA and DEA interpretations clearly.
Thanks, Darwin. I appreciate your comments. There are definitely some interesting nuances on this issue. -Rod
Excellent article
I favorited your article
Very informative
Thanks
Thanks for ready and posting the kind words, Richard.
Your content is so well-written, I use your site to settle arguments within the retail hemp industry. THCa flower is just beginning to hit the mid west, and in illegal states like ours, risk is often worth the reward.
Thanks for your comments. I am glad to hear that my articles help you settle arguments. Best of luck with your business.
They are very easy to understand. I lobby for it in Tennessee. This will be an interesting conversation with my lawyers here. I wish I had you I’d feel more comfortable. I own a chain of stores in western Tn.
Hello Mr Knight. I come from a family with a few attorneys, and my Father was a law prof at UW and Umass for 40 years. I know how annoying when people ask for legal opinions for free, like acquaintances ask anyone with a truck to help them move. That being said, I apologize for being that guy, but do you have any clients in Wisconsin? Do you know anyone else that is qualified to speak on THCa in Wisconsin? Our state is a mess , partisan politics and an even ratio of dumb to dumber, this issue is far beyond the comprehension of our lawmakers. I thought I would ask, on the off chance that you had already done the leg work and would be willing to provide your opinion specific to Wisconsin. If not, totally understand. We really appreciate all of the information that you so generously make available. Thank you!
Hi, Ben. Thank you for your comments. I have sent you a private email regarding your questions. -Rod
Ever get any info on this subject in Wisconsin?
Is High THCA hemp flower Legal to sell in a Regular Brick and Mortar Store in Illinois? The Labs show Non Detected Delta 9
But THCA is 19%
Great article Rod, as always. Thanks for always looking forward in the industry and giving your legal perspective!
Thanks, Drew. I appreciate you reading and commenting.
Rod
Thank you for the article. I currently work in extraction/recovery of CBD and I’m constantly researching laws to verify that our products are legally compliant.
Thank you, Michael. I appreciate your work and comments. -Rod
Hi, how can I find my state’s laws on high-THCa hemp flower? I’ve looked, but haven’t been able to find it. And this state in question – Hawaii – is a rather weird case itself, not least when it comes to cannabis (any type, form, derivation, extraction, cultural acceptance, history of legislation for medical marijuana, lack of dispensaries, recent cases with hemp retailers, etc.) But as far as I know, or have been able to figure, hemp products that fall within the scope of the 2018 Farm Bill (including things like Δ8, yesbutnobutyes) are legal, period. Could you point me to some resources, so I can be sure to fall on the right side of the law? (And there’s some potential for my stepping into an advocacy role for the legalization of marijuana for recreational use, and promotion of hemp growers, and such, general cannabis advocacy, so I’m looking around and researching before I seriously consider the possibility.) Your site is a fantastic resource for me; wish I’d found it sooner! Mahalo!
Thank you for reading and commenting, Ana. It can be difficult to determine whether or not a state’s laws and regulations allow for high THCa hemp flower. If a state prohibits “smokable hemp” then it also, by definition, prohibits THCa hemp flower. If the state in question does not prohibit smokable hemp, its statutory definition of “hemp” mirrors the federal definition, and it does not require post-harvest testing, then it is likely that THCa flower is lawful in the state. That being said, it is important to do a proper and thorough analysis since state laws differ and some are complicated and/or “grey” with respecto this issue. Please feel free to reach out privately if you would like to schedule a consultation about your particular issue: https://cannabusiness.law/contact/
Rod
Thca flower. Wow man. Gold mine just waiting to explode!!! I want to be an innovator in thca hemp flower distribution. It IS the big thing now!! AND I WONT STOP UNTIL I MAKE IT TO THE TOP.
DMD RAY
Thank you for your enthusiastic comments, Rayme. I agree that THCa flower is an exciting development for the hemp industry. Please feel free to contact me directly if you would like to schedule a consultation to discuss your business: https://cannabusiness.law/contact/
Rod
Great Website 👍
Thank you, Mike!
I built the absolute zero you refer too. I am the person who built the first controlled substances act compliant THC delivery system. You want to see how to be a wizard and get that absolute zero every time. Please reach out to me on LinkedIn
What about this? The plant produces cannabinoid acids like THCA which decarboxylates thermally and is 87% THC by weight.
Taken from https://www.govinfo.gov/content/pkg/FR-2021-01-19/pdf/2021-00967.pdf
“Laboratory Testing Requirements
Section 297B(a)(2)(A)(ii) of the AMA requires that State and Tribal plans for primary regulatory jurisdiction include a ‘‘procedure for testing, using post- decarboxylation or other similarly reliable methods, delta-9 tetrahydrocannabinol concentration levels of hemp produced in the State or territory of the Indian Tribe.’’ Since not all testing methods include decarboxylation, AMS is requiring that the total THC, which includes the potential conversion of tetrahydrocannabinolic acid (THCA) into THC, be reported and used for purposes of determining the THC content of a hemp sample.
The IFR included requirements on how laboratories conduct hemp testing for the purposes of regulatory compliance to assure that total THC levels were measured. Commenters provided extensive input on testing requirements, particularly the requirement to test for ‘‘total’’ THC instead of only ‘‘delta-9’’ THC. AMS is retaining this requirement.
AMS looked at current testing methodologies that would meet the decarboxylation requirement set in the 2018 Farm Bill. In gas chromatography (GC) testing, heat is applied to the sample, which decarboxylates THCA, producing delta-9 THC, so that the final delta-9 THC result is actually a total THC result. GC is the more traditional technique used for THC testing and was the technique used by Dr. Small 5 in his research that derived the 0.3 percent threshold that was used as a basis for the 2018 Farm Bill requirement and is used by law enforcement as the threshold to differentiate hemp from marijuana. In his research papers, the 0.3 percent threshold is based on total available delta-9 THC, which is the sum of THCA and delta-9 THC in the plant material.”.
Mark- Thank you for taking the time to post a comment. I actually addressed your question in my article. I’ve copied and pasted the pertinent portion, below, in case you missed it. -Rod
What About Total THC?
The obvious response to the above analysis is, “What about the USDA requirement that hemp must pass a test prior to it being harvested to ensure that its total THC concentrations do not exceed 0.3%?” In its Laboratory Testing Guidelines issued on January 15, 2021, the USDA requires a “total THC” test for pre-harvest hemp: “Tests shall measure the total THC concentration in a sample submitted to a laboratory for analysis. The laboratory will perform chemical analysis on the sample using postdecarboxylation or other similarly reliable methods where the total THC concentration level considers the potential to convert delta-9-tetrahydrocannabinolic acid (THCA) into THC.” Additionally, in its Final Rule regarding hemp production, the USDA mandates that a pre-harvest hemp compliance test take into account the “potential” THC in a sample by requiring the test to take account of the “total THC, derived from the sum of the THC and THCA content, shall be determined and reported on a dry weight basis.” Based on the USDA’s requirement for total THC testing, it seems that hemp flower with high THCa levels should not be lawful, right?
The answer is, “Not necessarily”. The USDA rule only applies to hemp production, which means hemp cultivation. The USDA does not regulate hemp once it has been harvested and its testing regulations do not apply to hemp that has been harvested. Provided that a pre-harvest hemp sample passes the “total THC” test, it is lawful hemp, regardless of the THCa concentrations present in the harvested material. Interestingly, the DEA and the USDA seem to be at odds about this issue. As discussed above, the DEA does not seem to care if the cannabis material was grown by a licensed hemp grower or whether it even passed a pre-harvest test. In stark contrast to the USDA, the DEA solely relies on the D9 concentrations of cannabis materials in determining their legal status, regardless of whether they passed a USDA pre-harvest test, or even if they were tested at all before harvesting.
Thanks for your reply Rod. Cultivation of plants vs. harvested plants ambiguity aside, you said “Provided that a pre-harvest hemp sample passes the “total THC” test, it is lawful hemp, regardless of the THCa concentrations present in the harvested material” High THCA cannabis will likely not be below 0.3% in total THC post-decarboxylation of a pre- or post-harvest sample of plant material if that is the method of determining the total THC content in plant samples. Thanks again for your comment.
Great info. Thank you so much for a thorough and well written article. Have you had any experience regarding THCA flower issues in Georgia ?
Thank you for your comments, Darren. With respect to GA, I am not licensed in that state, but I do keep up with what is happening in the industry throughout the US and the world. I am not aware of any issues arising yet, but it will not surprise me if they eventually surface. There is a lot of confusion regarding THCa flower. -Rod
Great content. Honest words. A real position on it. Loved it. We’ve been HEAVY on THCa flower at our store, our satellite stores, and vending machines. It’s amazing. Had someone in from Colorado, to our Houston store, this morning. He said, “why does it smell so good, like that?”. He said it was, at least comparable, but even, possibly, better than a lot of flower he sees, back home. It’s been my primary smoke for the last two weeks, since we’ve been carrying so much of it. I even did a solventless extract of THCa flower and it made some AMAZING concentrate.
It seems a majority of this article discusses the legality of the production by hemp growers and sales by retailers. What is the risk and exposure for the consumer purchasing it online?
Good question, Don. Before purchasing THCa flower, consumers should know whether or not it is lawful to possess in their state. Consumers should check certificates of analysis (COA) to confirm that the delta-9 THC concentrations do not exceed 0.3%. Finally, it is advisable not to drive or carry it in unsealed packaging. Feel free to contact me directly via the Contact Page of my website if you have more questions. -Rod
Thank you for this article! I’m going through a trial now because Virginia doesn’t understand what you so eloquently explained here and they sent a SWAT team into one of my locations.
JUST SMOKE IT YO!
I live in Illinois, so am not looking for an alternative to marijuana, because it is legal here. I’m glad that there are other choices in less progressive states
Thanks for reading and posting your comments, Pete.
Nice blog, keep fighting the good fight
What about the cost Pete? Some of these legitimate hemp producers provide an item that is virtually identical at a fraction of the price. In some cases just 25% of the “normal or typical” cost.
Great article, Rod. We’ve bookmarked this in case we need your help in the future. The new Farm Bill is about to be discussed, hopefully it doesn’t change as much as expected. Fingers crossed!
Thanks for reaching out and do not hesitate to contact me privately if you need any assistance. 2023 will be a big year for hemp and we hope that the 2023 Farm Bill stays the course.
It is about time someone put the facts out there once and for all (or at least now). The science of Cannabis has evolved. We will see what happens with the Farm Bill going forward and thank you so much for your work! The different Cannabis testing laboratories have been testing for THC all this time when in fact it was THCA that was the actual cannabinoid showing up deeming the ancient ‘Marihuana’ law a misnomer. You are appreciated!
Thank you for the kind comments. I am hopeful that the evolving science of cannabis you mentioned will continue to expand access for everyone who wants (and needs) it. -Rod Kight
Great blog! Thanks for educating us and sharing this amazing piece of information. I like learning about this amazing plant and its products.
Thank you for the kind words. -Rod
Hello Rod,
Thank you for always putting information out like this. Do you have any THCa legal updates to share, specifically in Tennessee?
Hi, Devin. Thanks for reaching out. I provide documents and updates on THCa flower to our clients who request it. Feel free to reach out directly regarding engaging the firm. -Rod
This is a very good article and I have been reading all of your articles such knowledge in this field I did email to schedule appointment can’t wait to receive the call to get this started with my consultation. We are small HEMP store in Illinois selling the variety of cannabinoids and different products hitting the market and the thca flower and other products have been a big hit thank you for your dedication and work in this field and your blogs they are a great read
Thanks, Clint. I look forward to our conversation. -Rod
99% of what is being distributed is black market marijuana that did not pass testing or can not be sold in a traditional market. It fails for safety, and THC content if it was actually retested by these stores. 30% High THCA “hemp” can not be grown by hemp growers. Passing a USDA test at 30 days is tight even for High CBD strains. Legitimate hemp growers are going of out business, since everyone just sells black market marijuana now. The interpretation of this is acting as a shield for bad actors, the distributors fraudulently selling it as hemp to stores, and is going to ruin the industry as legislation is fast tracked to limit THC content in hemp. All based on sales of products that aren’t even hemp to begin with. The retailers are happy until they wake up and see their peers are being raided, charged, and arrested with no real defense. Big marijuana must be laughing as they are able to sell their failed crops and unwanted cannabis for a premium as “hemp”, the amount of mold reported in this flower is astounding.
Bill,
Thank you for reading and for your comments. Although some THCa hemp flower may, in fact be “black market marijuana”, I can personally attest to the fact that this is not the case for many distributors. I have personally toured a licensed hemp grow that produces high quality, high THCa, THCa flower that both passes USDA pre-harvest testing and has high THCa levels (but stays within the 0.3% D9 limit) post-harvest. I am working on a blog post about it now. As for “mold”, that’s a case by case basis. I am fortunate to represent many legitimate clients who distribute high quality, non-moldy, safe THCa hemp flower. My interpretation, which simply follows the plain language of the law, is not intended to shield anyone except people who follow the law. Finally, with respect to state and federal lawmakers changing the law, it is up to the hemp industry to lobby hard to stop it. I am participating with multiple groups on this front.
Rod
Spot on Bill
Hemp must pass the preharvest decarbed 1% thca have passed the preharvest complaince – and haven’t seen a single company displaying their preharvest test results along with matching high THCa CoAs
Any actual hemp farmer will
affirm that that even truly compliant hemp is often borderline hot at testing (an issue which resulted in 100s of acres of crops being destroyed every year)
That’s strains that max out at 1% THCa
Strains that max
Out at 20% THCa will be 3-10% THCa at preharvest testing, and are familiar to us all as marijuana
If cannabis doesnt meet the <0.3% tes at preharvest it’s not hemp and marketing as such is fraud, not a clever “loophole”
Hi & thanks for the article. What about Federal laws concerning distribution of a controlled substance over state lines? Are THCa vendors setting themselves up for potential prosecution under RICO or 280e tax laws? Many of these vendors will ship into Oregon and other states for instance where the rules concerning Total THC and hemp are clear and anything w Total THC (D9 x THCa) over 0.35% is considered illegal. Seems like it would be easy for Fed or State prosecutors to subpoena ecommerce records which will provide them with shipping records and amounts sold and for how much $. Is the DEA really going to pretend like THCa is not THC? And won’t the regulated stakeholders within the “legal” marijuana/THC/Rec markets be lobbying their legislators and law enforcement agencies to crack down on the unregulated THCa vendors? Seems like it might just be too good to be true and that if there are some busts that the THCa vendors could not only 1.) have to defend themselves in a potentially (very) costly court case 2.) have a huge tax liability 3.) possible prison terms for using USPS etc to ship over state lines? It clearly states the following on the DEA website – “Please note that a substance need not be listed as a controlled substance to be treated as a Schedule I substance for criminal prosecution. A controlled substance analogue is a substance which is intended for human consumption and is structurally or pharmacologically substantially similar to or is represented as being similar to a Schedule I or Schedule II substance and is not an approved medication in the United States. (See 21 U.S.C. §802(32)(A) for the definition of a controlled substance analogue and 21 U.S.C. §813 for the schedule.)”. Isn’t calling THCa flower “THCa Hemp” both misleading and disingenuous since the USDA ruled that hemp has a total THC level at or below 0.3%? And lastly won’t the actions by a few THCa vendors possibly ruin the enormous leeway hemp producers have been given thus far by causing the DEA to become involved with lab testing, oversight and such?
By far Sir this has been the most up to date and inclusive article I have found on this subject. I appreciate all the time and research that was put into the article. Thank you. I will be sharing this article.
Thank you, Heather. I am glad that the article was helpful to you. -Rod
Hey I’ve been wondering… what ever happened with the analogue act? Couldn’t that shut down thca and other variations with potential ease depending on judge and case law? Speaking of… never been a fan of case law. I can understand for situations not addressed in law but seems case law can either remove or add functionality to a law never intended. That and the fact some judges selectively apply some laws, ignore others, and in my experience misrepresent the law intentionally they pretty much take on some legislative power… and then the fact they work close with law enforcement and have pull with them and then the cherry on top of judicial immunity… it’s a kick in the face to separation of power and protected with immunity. Crazy
The analogue act is covered in the December 19 2022 video on this blog in the discussion with the Hemp Industries Association. The short answer is that substances that occur naturally in hemp are defined as hemp so are not covered by the analogue act. But rather than continue to paraphrase it badly, I encourage you to go watch that video. Cheers.
Oh, I may have been referring to the March 17 2023 video actually. Got them mixed up. Both are worth watching though.
Thanks for your comments, Andy. #Like
Rod
It’s all moot if the hempers keep charging more per zip than the local expensary does for a zip with more THC. I’m in MD, which is considered a relatively ‘expensive’ state for cannabis based on national averages.
I’m guessing that a lot of the flower is picked early to keep it from attaining D9 levels that would render it non-compliant legally, so it seems to be all around inferior bud. Add in the chatter about multiple vendors selling dry and moldy bud that obviously did not get cured and dried properly, and it’s a land of total sketch.
I only use flower to press my own rosin. Until some entity puts something out there that makes it more cost-effective, my cheapest option is still BHO. Like I’d be buying QPs and pressing them were it not cheaper to have someone else grow, purge and blast before it hits at least one middleman. This is just SMH all around. Maybe if I knew who the target customer was and what group of people have been fueling the demand at the current prices… or better yet who’s buying all the smalls that represent the only sensible option on any menu but are NEVER in stock anywhere unless you time it just right.
You are the man for writing about this legal loophole in the hemp world. It doesnt make some Farmers too happy however we all know that the laws on Cannabis are bogus anyway. Now you can Buy THCA Flower at Potluck Expo ! We always have different varieties in stock as well as bulk pricing.
I was surfing through the internet for a while just to get in-depth information about the topic you wrote about and it really helped me to know more about the Thca flower laws in Hempland. After reading hundreds of them, I must say that this one is well-written and almost everything is covered in here. Keep sharing such blogs further as well. And kindly let me know how can I subscribe to the Newsletter. Thanks.
Greetings from the THC Army,
Down here in Texas, we’re about to marry one of the largest, most well known THCa distributors with one of the biggest, most far reaching Media companies in Texas! Then, when the smoke clears, the fight will be …………….
Seriously, I’m sure you’re familiar with the distributor, and the media company doesn’t matter, but I suspect we’re going to be talking more, soon. And with that, we hope your VISA to Texas is up to date, because we also plan on you being down here for the fight.
Therefore, as most Texans know the phrase, “We’ll leave the light on”
CopScott
Thanks for commenting. Please feel free to reach out directly to me via the Contact page if you would like to schedule a consultation. -Rod
Excellent article. Thank you, Rod. We badly need voices of reason like yours to rise to the surface and cut through the absurd politics that do nothing but create more and more massive confusion for everyone,
Thank you for the kind comments, Alan. I agree that there are some absurd politics about cannabis and I like to think that we can cut to the real issues.
Rod
It’s silly that so much time and money are exhausted on patrolling the streets for drugs. If someone wants to get high it should be their choice. End the police state!