Ever since Congress passed the Agricultural Improvements Act of 2018 (or 2018 Farm Bill), people have tried to find creative ways to sell intoxicating hemp-derived products. One example of this is THCA products, such as THCA flower, which contain very high levels of THCA. But is THCA legal? Today, I want to examine legality of THCA and why the “THCA loophole” seems like it’s coming to an end.
Is THCA legal? An overview of the 2018 Farm Bill
For starters, hemp may only have a maximum of 0.3% delta-9 tetrahydrocannabinol (THC). According to the DEA, if hemp or its derivatives contain levels of THC in excess of 0.3% on a dry weight basis, they are considered marijuana. The issue is that hemp will not only contain THC, but also delta-9 tetrahydrocannabinol acid (THCA). THCA, when subjected to heat, converts into THC. So a hemp product that may have had compliant levels of THC could suddenly have non-compliant levels of THC if THCA is converted.
While THCA itself is not referred to in the federal definitions of marijuana or hemp, it nevertheless plays an essential role in the determination of a products status as legal or illegal because of the conversion to THC. The 2018 Farm Bill mandates that all hemp be tested for “total THC” – which is defined to include the actual THC content plus the THCA converted into THC. Again, if the sum of THC using this method exceeds 0.3%, the hemp is legally considered marijuana and must be destroyed.
Interestingly, there are different ways that THCA is converted into THC, and the method is referred to as post-decarboxylation. The U.S. Department of Agriculture’s (USDA) 2018 Farm Bill regulations define this process as follows:
In the context of testing methodologies for THC concentration levels in hemp, means a value determined after the process of decarboxylation that determines the potential total delta-9 tetrahydrocannabinol content derived from the sum of the THC and THCA content and reported on a dry weight basis. The post-decarboxylation value of THC can be calculated by using a chromatograph technique using heat, gas chromatography, through which THCA is converted from its acid form to its neutral form, THC. Thus, this test calculates the total potential THC in a given sample. The post-decarboxylation value of THC can also be calculated by using a liquid chromatograph technique, which keeps the THCA intact. This technique requires the use of the following conversion: [Total THC = (0.877 x THCA) + THC] which calculates the potential total THC in a given sample. See the definition for decarboxylation.
In plain English, gas chromatography heats THCA until it converts to THC, whereas liquid chromatography does not convert the THCA but applies a formula that is used to calculate the total THC level. There is a pretty serious debate in the industry about which of these two methods is better, but I’ll leave that for a different day. For the time being, let’s look at how this affects THCA products to see whether THCA is federally legal.
Proponents argue THCA is legal due to Farm Bill testing provisions
Both the 2018 Farm Bill and USDA mandate total THC testing on pre-harvest hemp batches. They do not mandate testing of post-harvest hemp or hemp products. The Controlled Substances Act (CSA), which outlaws marijuana, contains no specific mandate to test hemp products since hemp is not controlled.
This all raises a key question: If hemp passes pre-harvest testing (i.e., has levels of THC and THCA that, upon conversion, collectively lead to a total THC level that is below the 2018 Farm Bill’s requirements) and at any point after has excess THCA, is it controlled? In other words, if after pre-harvest testing, a super high amount of THCA grows on the plant, so much so that it would become “hot” if tested again, would it be illegal?
Some commentators originally believed the answer was “no” – at least under federal law. Folks like Rod Kight argued (see here and here) that because these products would have passed pre-harvest testing, the fact that these products later had excessive THCA content was immaterial under federal law. Rod Kight and others have written plenty on this topic and I don’t want to paraphrase too much, so you should check out their posts if you are interested.
Why I think THCA products are problematic
I tend to think that Rod Kight and others who take this position are onto something important. That said, I think two practical concerns outweigh the potential legality of post-harvest THCA products.
First, state law is critical to consider. Even if something is allowed (or just not explicitly banned) federally, if it is banned in a state, it can’t be sold there. Many states have total THC requirements on hemp products which would categorically outlaw THCA products in my view. In other words, in these states, THCA is illegal. I should mention that Rod Kight points out that he only discusses federal law, but my point is that we cannot look at federal law in a vacuum. In a state where total THC of products is a required testing element, then these products would be illegal, hands down.
I should point out that there are plenty of people who point out that states can’t regulate THCA products in a way that is more stringent than the 2018 Farm Bill, but I disagree with them on a lot of reasons. I’ll try to analyze that on a later post.
Second, practically speaking, claiming that THCA products are legal is a tough sell to law enforcement or a court that is not familiar with the nuances of federal hemp laws. Imagine a truck driver gets pulled over with a car full of THCA products with 25% THCA. Those products, when tested, will have levels of THC in the double digits. That driver is going to jail, and will have to do their best to persuade a court that a gap in testing requirements under the 2018 Farm Bill makes their product lawful. Even assuming that argument is solid, there are just too many possibilities that law enforcement won’t understand or agree that there is any kind of THCA loophole. This is an issue that would likely need to be resolved in the appellate courts, which would be expensive, time consuming, and risky.
I should mention that some advocates, like Rod Kight, highlight some of these points in their work as well. In my view though, these practical concerns outweigh the potential for an expensive and hard-fought court victory years after an enforcement action is brought.
Is THCA illegal? What the DEA says about THCA products
The DEA seems to have settled the issue for now. In a partially redacted letter, which Rod Kight analyzed here, the DEA claimed that THCA products are illegal because THCA must be converted into THC under the 2018 Farm Bill. Kight picks this position apart essentially as I noted above. While, again, I think Kight’s argument has legs, it becomes much more difficult to deal with law enforcement and courts when the DEA claims that THCA products are illegal. Most businesses aren’t too keen on taking the DEA to court and trying to persuade a judge that THCA is legal.
In the near future, it’s expected that the DEA is going to take additional regulatory actions with respect to cannabinoid products. Who knows what that will look like now or whether THCA products will officially be on the chopping block. We could also see Congress take action, when the Farm Bill is renewed. For the time being, stay tuned to the Canna Law Blog for additional cannabinoid developments.
Update: This post was updated to clarify the position of Rod Kight on certain risks of commerce in THCA products and to clarify other points throughout.
