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THCA flower: legal weed or weak loophole?

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SEPTEMBER 14, 2023 RACHELLE GORDON

The majority of Americans live in a state where cannabis is legal. However, there are still many states where prohibition reigns. THCA flower has become the hot new way to get high for folks in these several of these places.

THCA flower looks and smells like the traditional cannabis you see at a legal dispensary with the same psychoactive effects. But unlike the high-THC bud that is illegal in the eyes of the federal government, THCA flower may be considered lawful hemp depending on where you reside thanks to the 2018 Farm Bill.

So, how can something seemingly identical to regular weed be legal? The facts are a bit hazy, depending on who you ask.

Is THCA flower legal hemp or regular cannabis in disguise?What is THCA flower?

THCA flower has high levels of tetrahydrocannabinolic acid (THCA for short). THCA is a cannabinoid that is the precursor to delta-9-THC. THC is a cannabinoid known for its psychoactive and euphoric effects.

THCA turns into THC when it’s exposed to heat. This is a process called decarboxylation. All THC flower starts as THCA flower since THCA converts to THC. When you light a joint or a bowl, you’re creating the THC at that moment.

This chemical process is essential when making edibles. It’s why you won’t feel much if you eat cannabis buds in their raw form—they must be heated first to activate the THC. So, what makes THCA flower different from THC flower? The short answer is not much. It all comes down to semantics.

Defining “hemp”

According to the 2018 Farm Bill, hemp is defined as cannabis flower with no more than 0.3 percent concentration of delta-9-THC. Any bud exceeding this level is no longer hemp and is classified as marijuana, an illegal Schedule I controlled substance.

According to cannabis attorney Rod Kight, founder of Kight Law Office, this is the key to THCA flower’s proliferation on the market.

“Under federal law and the laws of some, but not all, states, THCA flower is not a controlled substance,” Kight told GreenState. “In other words, the sole metric for distinguishing hemp from marijuana is the level of delta-9 THC. The levels of other cannabinoids, including THCA, are irrelevant to the material’s legal status.”

The debate over the legality of THCA flower and the interpretation of the current federal guidelines is a hot topic in the cannabis space.

Jared Reams, a cannabis attorney and partner at Eckland and Blando, disagrees with the notion that THCA flower falls under the definition of hemp, calling it false marketing. “If this were true, all cannabis would be hemp because THCA is what the plant creates; it only becomes THC when it loses the carboxyl group (gets ‘de-carbed’) with the introduction of heat,” Reams told GreenState. “In sum, THCA flower is not legal and is, in fact, just run-of-the-mill cannabis.

Is this hemp or marijuana? Hard to say.Testing, testing

Licensed hemp cultivators must have their plants tested before harvest to remain in compliance with the law. The entire crop must be destroyed if a sample tests over 0.3 percent THC.

THCA is factored into federal testing, with samples required to be submitted post-

decarboxylation. The total THC concentrate is set using a formula set forth by the United States Department of Agriculture (USDA): [Total THC = (0.877 x THCA) + THC].

Reams broke down the math in an email to GreenState:

“The reason THCA is multiplied by 0.877 under that equation is that the remaining 0.123% accounts for the weight of the carboxyl group that is lost once the THCA is converted to THC,” Reams explained.

Some states use the federal guidelines, while others do not call out THCA. Additionally, certain states also mandate that cannabis plants be tested post-harvest; the federal government only requires the pre-harvest test.

“Once (the plant) passes the pre-harvest compliance test, the only cannabinoid that matters from a compliance standpoint is delta-9 THC,” Kight surmised.

Between variations in testing standards and the language around what constitutes THC in the Farm Bill, it’s relatively easy for THCA flower to pass for legal hemp in the eyes of the federal government. However, it’s still a gray area on a state-by-state basis.

Is THCA flower legal in all 50 states?

Despite the theory that THCA flower is legal hemp in the eyes of the federal government, it is not legal everywhere in the United States. Regulations around cannabis vary widely from state to state, as do testing requirements.

Cannabis mega-brand Cookies recently raised eyebrows after it offered customers across the country to buy THCA flower online. To ensure compliance, the company only ships to states where smokable THCA flower is lawful. According to its legal counsel, this includes Alabama, Arkansas, Colorado, Nevada, New Hampshire, North Carolina, Oklahoma, Tennessee, Texas, Vermont, West Virginia, and Wyoming.

Cookies added an entire page about the federal legality of THCA flower to its website, along with a legal opinion letter penned by Kight. The content spells out the current federal definition of hemp, making the case that Cookies complies with the law. The letter points out that interstate commerce involving THCA is permitted.

Even so, the topic of THCA and law is still contentious. GreenState contacted several brands producing and selling THCA flower for this piece. When questions about legality arose, every company stopped responding to emails.

Furthermore, consumers in states where THCA flower has been deemed lawful may still run the risk of being prosecuted for cannabis possession. Law enforcement often relies on testing methods that will convert THCA to THC, meaning the flower is likely to test hot.

Since this analysis method converts THCA to THC, any THCA flower in question could likely be deemed a controlled substance. Even if you obtained a certificate of analysis (COA) from the brand proving pre-harvest compliance with the Farm Bill, it’s up to the judge’s discretion on whether the product is lawful.

People who are subject to drug testing may test positive for marijuana if they smoke THCA flower. Regardless of whether the flower was lawful in the eyes of the feds at the time of harvest, the consumption and possession of THCA bud may still have negative consequences for consumers.

Future of THCA flower still up in the air

The Drug Enforcement Agency (DEA) recently alluded to the THCA in an unverified letter circulated online, reportedly responding to questions about synthetic cannabinoids from Vice Media.

The letter said, “Cannabis-derived delta-9 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.“

Kight published a lengthy blog breaking down the letter’s contents, again arguing that pre-harvest flower meeting the current guidelines is fair game.

Conversations around rescheduling cannabis would not apply to THCA flower since hemp does not fall under the Controlled Substances Act. However, there has been speculation that the federal government may change its definition of hemp when the Farm Bill is renewed,

especially given the surge of synthetic psychoactive cannabinoids such as HHC and THC-O.

“The industry strongly recommends that the definition remain the same since farmers, processors, manufacturers, distributors, and retailers have all invested significant capital, time, and resources into the hemp industry under the current definition, and a change could pull the proverbial rug out from underneath them,” Kight stated.

The current landscape around high THCA hemp flower remains in a proverbial gray area, with many voices on all sides. While some are enjoying a perceived loophole, others insist it’s only a matter of time before the hammer comes down. “It’s too risky,” Reams maintained.

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