Legal Opinion Letter

What is THCa?
Tetrahydrocannabinolic acid (THCa) is a cannabinoid naturally produced by the cannabis plant. Unlike Delta-9 tetrahydrocannabinol (Delta-9 THC), THCa is non-psychoactive and does not induce intoxication in its natural form. However, under certain conditions such as exposure to heat, light, or time, THCa converts to Delta-9 THC through a process called decarboxylation. This transformation imparts the psychoactive effects typically associated with cannabis.

THCa Hemp Flower Defined
THCa hemp flower refers to cannabis buds containing high levels of THCa but less than 0.3% Delta-9 THC by dry weight. According to federal law, products meeting this threshold qualify as hemp and are therefore lawful. High as A Kite EADO ensures its THCa hemp flower is naturally cultivated and free from artificial additives.

THCa vs. Delta-9 THC
THCa and Delta-9 THC are distinct cannabinoids. THCa is the precursor to Delta-9 THC and undergoes decarboxylation when exposed to heat. While THCa does not cause intoxication, its decarboxylated form, Delta-9 THC, does. Cannabis plants naturally contain higher concentrations of THCa compared to Delta-9 THC.

Marijuana vs. Hemp
Federal law differentiates between marijuana and hemp based on Delta-9 THC content. Cannabis containing over 0.3% Delta-9 THC by dry weight is classified as marijuana and remains federally prohibited. Conversely, cannabis with Delta-9 THC concentrations at or below 0.3% is deemed hemp and is lawful under the 2018 Farm Bill. This distinction does not consider THCa content.

Legal Implications of THCa Hemp Flower

  1. Federal Legality:
    THCa hemp flower complies with the 2018 Farm Bill, provided it contains no more than 0.3% Delta-9 THC by dry weight. The Controlled Substances Act excludes hemp from the definition of marijuana, rendering compliant hemp products lawful under federal law.

  2. DEA Position:
    The DEA acknowledges that cannabis material with Delta-9 THC concentrations not exceeding 0.3% by dry weight meets the definition of lawful hemp.

  3. Judicial Interpretations:
    Federal courts, including the Ninth Circuit and the Eastern District of Arkansas, have confirmed that Delta-9 THC concentration is the sole determinant distinguishing hemp from marijuana under the 2018 Farm Bill.

State Law Considerations
The legality of THCa hemp flower varies by state. While some states adhere strictly to Delta-9 THC thresholds, others consider total THC, including both Delta-9 THC and THCa, when determining legality. For example:

  • Texas and North Carolina: These states base legality solely on Delta-9 THC content, making THCa hemp flower lawful.

  • States Using Total THC Calculations: States applying a total THC standard may classify THCa hemp flower as marijuana, even if it meets federal requirements. Consultation with legal counsel is recommended for clarity.

Interstate Transportation
Federal law protects the interstate shipment of hemp products, including THCa hemp flower. States and Indian tribes may not prohibit the transportation of hemp through their territories.

Practical Considerations

  1. Drug Testing:
    Consuming THCa hemp flower may lead to failed drug tests due to the presence of cannabinoids, including THC.

  2. Public Use and Storage:
    Given legal ambiguities, public consumption or having open packages of THCa hemp flower in vehicles is discouraged. Proper storage in a cool, dark, and dry environment is recommended to prevent THCa from converting to Delta-9 THC.

  3. Certification of Compliance:
    Consumers and businesses should verify compliance through a Certificate of Analysis (COA), which details cannabinoid concentrations.

Pre-Harvest vs. Post-Harvest Testing
The USDA mandates pre-harvest total THC testing, combining THCa and Delta-9 THC to ensure compliance. However, post-harvest testing focuses solely on Delta-9 THC levels, enabling compliant cultivation practices that maximize THCa content while maintaining federal legality.

Disclaimer
This document serves informational purposes for High as a Kite EADO and should not be construed as legal advice. Stakeholders should consult their own legal counsel to address specific concerns regarding THCa hemp flower and related products.