Decoding the DEA’s Stance on THCa: Is it Legal to Buy THCa Flower?

A recent DEA pronouncement about THCa’s dubious legality shocked many cannabis proponents after a confusing letter circulated on social media. Yet, despite the cold sweat beading on the brows of cannabis industry stakeholders, legal experts maintain the letter is no real cause for alarm. Regrettably, the letter confuses an already complicated area of cannabis law. Yet, by law, the DEA’s stance on THCa must reflect the 2018 Farm Bill statutes, which affirm the current understanding of THCa. Though the DEA letter implies THCa illegality, legal experts say this conclusion would misread the 2018 Farm Bill. Instead, we must carefully decode it to understand the nuances of cannabis law [1].

The DEA’s recent letter restates the fact that hemp producers must comply with the total “THC test” (including THCa) to harvest their hemp. Conversely, post-harvest hemp enjoys federal compliance status without the requirement of total THC testing. Yet, this latter detail is left unclear in the DEA letter. According to the 2018 Farm Bill’s definition of hemp, post-harvest Delta-9 THC levels, not THCa levels, determine a product’s compliance status [1]. Here we’ll explain this commonly misunderstood concept, why the DEA’s letter confuses the issue, and how it may affect consumers and the hemp industry.

The DEA’s view in the recent letter

The legal landscape surrounding hemp and its derivatives has been a topic of great interest and confusion in recent years. The Drug Enforcement Administration (DEA) plays a significant role in interpreting and enforcing federal drug laws in the United States. In a recent poorly worded letter, the DEA addressed the THCa issue and its legality [1]. This article aims to decode the DEA’s position on THCa and explore why post-harvest THCa is, in fact, legal, despite the implications of the letter.

Is Hemp-Derived Delta-9 THC Legal?

Understanding tetrahydrocannabinolic acid (THCa)

THCa is a naturally occurring compound in the cannabis plant, whether the plant is hemp or marijuana. Unlike its well-known counterpart, Delta-9 Tetrahydrocannabinol (THC), THCa is non-psychoactive in its raw form. Only when THCa encounters heat or prolonged light does it undergo decarboxylation. This process converts THCa to Delta-9 THC. Users of Delta-9 THC usually experience the psychoactive effects commonly associated with marijuana [2].

Consumers utilize THCa derived from hemp for various purposes. These include potential health benefits and recreational use. When consumed as part of a hemp-derived cannabinoid product, THCa is federally compliant and offers potential therapeutic effects.

Legal hemp-derived THCa products include:

• Dietary supplements
• THCa Pre-Rolls
• Flower
• Vaporizers
• Topicals
• Other Wellness Products [2].

THCa’s unique effects and qualities

While THCa does not possess psychoactive properties, the acidic cannabinoid changes into psychoactive Delta-9 THC when heated. Many THCa users smoke or vape the raw THCa flower to decarboxylate it for the euphoric effects. This chemical transformation makes THCa flower desirable for individuals seeking a legal psychoactive experience [2]. It’s important to differentiate between the sale and consumption of illegal marijuana products and legal THCa products. The 2018 Farm Bill clearly states that hemp products, including THCa hemp flower, are federally compliant if they contain no more than 0.3 percent Delta-9 THC [3].

THCa shares similar chemical structures with other cannabinoids in the cannabis plant, which may contribute to the overall pharmacological activities of the cannabinoids. As research into minor cannabinoids such as THCa progresses, scientists explore the potential therapeutic benefits. These developments highlight the multifaceted nature of cannabinoids and their potential for diverse applications in medicine and wellness [4].

The DEA’s confusing wording in the recent letter

In a recent article regarding the June 9, 2023 DEA letter, prominent cannabis attorney Rod Kight explains his perspective about the letter and its potential implications. Kight obtained a copy of this letter from Reddit and posted it in his article. He expresses his legal opinions about the letter and explains how its wording causes unnecessary confusion about the legal status of THCa [1].

The DEA states the following about THCa in the recent letter:

“In regards to Delta-9-THCA, Congress has directed that, when determining whether a substance constitutes hemp, Delta-9 THC concentration is to be tested “using post-decarboxylation or other similarly reliable methods.” 7 USC § 1639p(a)(2)(A)(ii); 7 USC § 1639q(a)(2)(B). The “decarboxylation” process converts Delta-9 THCa to Delta-9 THC. Thus, for the purposes of enforcing the hemp definition, the Delta-9 THC level must account for any Delta-9-THCa in a substance…. Accordingly, 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 [1].“

The DEA’s stance on the hemp definition concerning THCa

The letter specifically focuses on the definition of hemp, established under the Agricultural Improvement Act of 2018, commonly known as the 2018 Farm Bill. According to the Farm Bill, hemp is cannabis containing no more than 0.3 percent Delta-9 THC on a dry weight basis [3].

However, the letter raises concerns about the potential for THCa in hemp to convert into Delta-9 THC during the post-harvest drying and processing stages. It references the rule regarding total THC testing when determining whether a plant is legal hemp or illegal marijuana. This reference confuses the matter because it fails to additionally reference another federally mandated rule specifying when the total THC test must take place [1].

Is the DEA correct in its interpretation of the 2018 Farm Bill?

According to Kight, the answer to whether the DEA is correct is “it depends [1].” By this, he means that if the DEA refers to the legal status of pre-harvest hemp, then their wording is correct. In other words, pre-harvest cannabis plants must be tested for total THC content under federal law. As such, plants with total THC above 0.3 percent are marijuana plants. In contrast, hemp plants comprise pre-harvest plants with a total THC concentration at or below 0.3 percent. According to the Farm Bill, all cannabis plants must pass a total THC test before harvest [1].

Even so, the sole legal metric for determining the legal status of post-harvest cannabis regards its Delta-9 THC percentage on a dry weight basis. Kight argues that if the DEA’s letter means that post-harvest cannabis must pass this total THC test, the letter is ill-informed and simply wrong [1]. After all, the DEA must carry out the rules outlined in the Farm Bill.

“The post-decarboxylation test [total THC test] does not apply to post-production hemp,” maintains Kight. He continues to stress that the two statutes cited in the DEA’s letter apply solely to hemp production, meaning pre-harvest cannabis [1].

Learn more in the Guide to THCa.

The legal status of THCa hemp: pre-harvest vs. post-harvest

While the DEA’s letter suggests that THCa is illegal due to its potential conversion into Delta-9 THC, it is essential to distinguish between pre-harvest hemp and post-harvest hemp.

Pre-harvest hemp refers to whole hemp plant material collected before drying and processing. Since THCa is the predominant cannabinoid in raw hemp, its presence in pre-harvest hemp is not cause for consumer concern. The 0.3 percent Delta-9 THC legal limit applies to post-harvest hemp, including dried and processed hemp plant material, but is not concerned with THCa content [5].

The role of post-decarboxylation tests in hemp production

The FDA conducts post-decarboxylation testing on pre-harvest plants to ensure compliance with the legal limit of Delta-9 THC. This test measures the total THC content, which includes both Delta-9 THC and the potential conversion of THCa into Delta-9 THC [1].

It is crucial to note that THCa constitutes part of the total THC content in pre-harvest cannabis. THCa converts into Delta-9 THC under specific conditions, such as heat or light exposure. Therefore, post-decarboxylation testing provides a more accurate representation of the potential THC levels in hemp and ensures compliance with federal regulations.

Yet, post-harvest hemp does not require post-decarboxylation testing according to the dictates of the Farm Bill. Therefore hemp-derived THCa is legal to purchase and sell, despite the recent DEA letter’s vague rhetoric [1].

The 2018 Farm Bill and its implications for hemp production

The 2018 Farm Bill brought significant changes to the hemp industry, legalizing the cultivation, production, and sale of hemp and its derivatives [3]. This allowed hemp compounds such as CBD, Delta-8, Delta-10 THC, and THCa into the market. It additionally allowed products with Delta-9 THC no greater than 0.3 percent on a dry weight basis. The bill recognized the distinction between hemp and marijuana by defining hemp as cannabis with less than 0.3 percent Delta-9 THC on a dry weight basis [3].

This distinction led to a thriving hemp industry, providing economic opportunities for farmers and businesses. However, the recent letter written by a DEA representative caused uncertainty within the cannabis industry, leading to concerns about the future of hemp-derived cannabinoids that naturally occur in the plant. But the DEA’s position, by federal law, must reflect the statutes of federal court decisions. Thus, this recent letter fosters unnecessary confusion about a cannabinoid that, according to the 2018 Farm Bill, is a federally compliant hemp product [1].

The DEA’s view on Delta-9 THC levels in post-production hemp

The DEA’s letter highlights the federal agency’s reductive interpretation of the Farm Bill and expresses concerns about the potential conversion of THCa into Delta-9 THC. However, it is important to note that the Farm Bill does not explicitly address the post-harvest THC conversion issue [5].

Without specific guidelines on post-production THC levels, the DEA’s interpretation could potentially disrupt the hemp industry by imposing stricter regulations out of line with the Farm Bill’s intentions. In other words, the DEA’s interpretation of THCa may not align with federal legal mandates or the evolving understanding of hemp and its derivatives.

The impact of DEA’s pronouncement on the hemp industry

According to legal experts, the DEA’s letter creates inappropriate uncertainty within the hemp industry [1]. It raises concerns about the legal status of THCa and the potential consequences for farmers, processors, businesses, and consumers. This uncertainty may hinder the hemp sector’s investment, innovation, and growth if industry proponents fail to decode the letter properly.

The letter implies that THCa is an illegal controlled substance, despite being a naturally occurring compound in hemp and containing less than 0.3 Delta-9 THC per dry weight. Additionally, the letter’s wording heightens concerns among hemp producers and businesses that rely on hemp-derived cannabinoids.

One potential impact of the DEA’s letter is on hemp-derived synthetic cannabinoids. While THCa occurs naturally in the cannabis plant, it can also be obtained synthetically, or by converting other hemp derived cannabinoids. The DEA’s letter creates legal ambiguity around synthetic THCa, which is chemically identical to naturally contained THCa. This lack of clarity may lead to hesitancy in producing or selling hemp-derived cannabinoids and could additionally stifle cannabinoid innovation in the industry [6].

For maximum quality and goodness, Earthy Select uses only naturally grown and harvested cannabis for our THCa Hemp Flower, cultivated for its high natural THCa content.

Is Delta-8 Legal in Wisconsin?

The future of THCa and its synthetic equivalents

The DEA’s letter sparks questions about the issue of non-cannabis materials containing THCa. THCa occurs naturally in hemp, and many non-cannabis there is a possibility that non-cannabis materials, such as certain fruits and vegetables, could contain trace amounts of THCa. This raises questions about the control status of these materials under the Controlled Substances Act (CSA). The DEA’s letter fails to provide clear guidance on non-cannabis materials containing naturally expressed THCa, further confounding the issue  [7].

Conflicting interpretations of THCa’s legal status can potentially disrupt the hemp industry. Hemp producers and businesses may face challenges navigating the regulatory landscape as they seek compliance with federal laws. This uncertainty could hinder the growth and development of the industry, as investors and entrepreneurs may hesitate to enter a market that lacks clear guidelines.

Will the DEA letter carry the force of law?

Kight implies that the DEA’s letter is not legally binding and does not carry the force of law [1]. However, it reflects a federal agency’s perspective and may influence how law enforcement and regulatory bodies interpret and attempt to enforce regulations related to THCa. The potential for conflicting interpretations of the law raises the possibility of legal disputes in federal courts, further stifling the industry.

The legality of certain cannabinoids, particularly concerning hemp-derived synthetic cannabinoids and non-cannabis materials, remains vague. The DEA letter amplifies this lack of clarity and may impede innovation and growth via legal disputes.

Legal considerations for hemp producers and businesses

Given the DEA’s stance on THCa, hemp producers and businesses must stay informed and should seek legal counsel when questions arise. Understanding the intricacies of federal and state regulations is vital for navigating the complex landscape of hemp production and ensuring compliance.

Nonetheless, legal experts highlight the recent DEA letter’s vague and potentially erroneous claims, maintaining the importance of weighing its rhetoric against the precise direction of the 2018 Farm Bill [1].

Can your business purchase legal THCa hemp?

Although the DEA’s letter stirred confusion, the legal status of THCa hemp remains unchanged. Post-harvest hemp containing THCa remains legal if it complies with the 0.3 percent Delta-9 THC limit [5]. Therefore, as a business, you can purchase legal THCa hemp for various purposes, including extraction, processing, manufacturing, transporting or selling hemp-derived products.

Navigating the Legal Landscape of THCa: Which States Allow THCa Concentrates?

Where to find premium and compliant THCa flower wholesale?

To ensure compliance with federal regulations and market premium, compliant THCa products, contact Earthy Select. Prioritizing quality control and regulatory compliance, Earthy Select provides peace of mind in a complicated industry. By partnering with expert legal counsel and conducting third-party lab testing, Earthy Select ensures THCa products fully comply with federal laws and regulations while using premium, organic ingredients.

Learn more: What Are the Best THCa Products?

Key Takeaway: Is THCA flower legal?

Though the DEA’s letter set the hemp industry’s teeth on edge, THCa flower remains federally compliant. After harvest, its status is determined by the concentration of Delta-9 THC, not the presence of THCa as required in the raw, pre-harvest hemp plant. As long as the Delta-9 THC levels remain below the legal limit of 0.3 percent per dry weight, THCa flower can be legally purchased and sold for various purposes.

Still, it’s always wise to monitor developments in federal and state regulations to ensure compliance and mitigate potential risks in this evolving landscape. In the meantime, rest assured that post-harvest hemp-derived THCa is lawfully available for purchase at Earthy Select.

Keep reading: The Ultimate Guide to THCa Flower

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Medical Disclaimer / Legal Disclaimer – Information is provided for educational purposes. It does not and is not intended to constitute legal or medical advice. We attempt to be accurate and up-to-date, but the legality of cannabinoids and the science of cannabis are evolving. The author is neither a legal professional nor a medical expert. Before buying or using any products, you should check with your local authorities and medical providers.

References

1. THCA and the DEA: Rod Kight
2. What is THCa, and How is it Different From THC?
3. Hemp Production and the 2018 Farm Bill
4. The Case for THCa and Other Minor Cannabinoids
5. THCa Hemp Flower: The Next Big Thing in Hempland
6. Natural and Synthetic Cannabinoids for Pharmacology
7. Cannabinoids without Cannabis?
8. DEA Violates Farm Bill’s Intent