THCa Flower- The Next Big Thing in Hempland?

THCa Flower- The Next Big Thing in Hempland?

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. 

September 14, 2022
Rod Kight, Cannabis industry attorney
ATTORNEY ROD KIGHT REPRESENTS CANNABIS BUSINESSES THROUGHOUT THE WORLD.

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

19 comments on “THCa Flower- The Next Big Thing in Hempland?Add yours →

  1. 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.

  2. 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%

  3. 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.

  4. 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!

    1. 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

  5. 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

  6. 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

  7. 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.”.

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