THCa and the Future of the Farm Bill

Hemp products have become so pervasive in recent years that it’s hard to remember a time when hemp was considered a controlled substance like marijuana. Now, you can find everything from Delta-10 THC gummies to CBD-infused lattes on every other street corner. Thanks to the 2014 and 2018 Farm Bills that differentiated hemp from marijuana and made products with up to 0.3 percent Delta-9 THC federally compliant, cannabis products have become ubiquitous nationwide. But what about THCa and the future of the Farm Bill?

Congress is due to address hemp regulation with much greater clarity regarding the stakes and the consequences of its 2018 policy choices as the bill expires in September 2023. Here we’ll discuss the state of the Farm Bill as it relates to the hemp industry (and THCa in particular) and explore potential choices facing Congress in the next Farm Bill. Hold onto your hats. The cannabis industry may be poised for change very soon.

What is THCa?

While tetrahydrocannabinol (THC) may be the most famous cannabinoid in cannabis due to its psychoactive properties, it wouldn’t exist without its acidic progenitor tetrahydrocannabinolic acid (THCa).

When cannabis grows, it creates carboxylic acids that most often convert into non-acidic cannabinoids through decarboxylation. Regarding THCa, decarboxylation occurs when it ages or dries over time, marking its loss of a carboxyl ring and its subsequent change into a psychoactive compound. The process can also happen suddenly when exposed to a heat source like fire, such as when cannabis is smoked or vaped [1].

Hemp dispensaries and boutiques have begun selling THCa products, often labeled “THCa hemp flower,” for smoking or vaping. Products may also contain THCa isolate. Though these products contain 0.3 percent Delta-9 THC to retain their federal compliance status, they change into much more psychoactive substances when smoked or vaped. Such products have raised legal questions about THCa. These questions may come before Congress at the next Farm Bill assessment this year.

Learn more in the Guide to THCa.

What is the Farm Bill?

Every five years or so, Congress meets to discuss possible legislation regarding agriculture, nutrition, conservation, and forestry policy. Commonly referred to as the “Farm Bill,” the legislation has enormous consequences for the nation. Some of the issues Congress decides upon include:

Farm support
Agricultural conservation
Foreign food assistance
Rural development
Rural and urban forestry issues
Bioenergy prospects
Horticultural guidelines
Domestic nutrition assistance [2]

The status of hemp took center stage at the legislative meetings in 2014 and 2018, resulting in dramatic changes that dictated how the cannabis industry has evolved ever since.

Cannabis legality and the Farm Bill

Impacting farmers, businesses, and consumers nationwide, the 2014 and 2018 Farm Bills set federal hemp research and commercialization policies. For example, in 2014, the legal status of cannabis changed, making hemp and hemp-derived products legal for research for the first time in decades. Next, federal law allowed hemp cultivation, transport, and sales with the passing of the 2018 Farm Bill. This bill set specific rules regarding the national hemp market [3].

2014 Farm Bill

The outcome of the 2014 Farm Bill was the Hemp Research Pilot Program. This program allowed cannabis research to begin. It also changed the definition of hemp versus marijuana. More specifically, the bill defined hemp as “the plant Cannabis sativa L. and any part of such plant, whether growing or not, with a Delta-9 THC concentration of not more than 0.3% on a dry weight basis.”

The legislation allowed scientists to finally explore new theories about the potential medical and therapeutic applications of cannabis [2].

2018 Farm Bill

The 2018 Farm Bill fueled the modern cannabis industry as we know it by removing the federal ban. Allowing low Delta-9 THC hemp products into the market, the bill made hemp widely accessible to consumers. More specifically, the Farm Bill (or the Agriculture Improvement Act) authorized hemp cultivation, production, and sales as long as the plants contained no more than 0.3 percent Delta-9 THC. It removed all hemp derivatives and seeds from the Drug Enforcement Administration’s (DEA) schedule of Controlled Substances.

Part of the bill, the Domestic Hemp Production Program, legalized industrial hemp at the federal level but gave states specific authority over hemp restrictions. As such, the Federal Government appointed the USDA to evaluate and approve plans submitted by state legislatures and tribal authorities to establish federal regulations for hemp growers, buyers, and sellers [4].

But, the 2018 Farm Bill does not refer to any type of THC except Delta-9 THC, leaving room for legal questions about specific products with psychoactive potential. Because THCa can easily be turned into Delta-9 THC via smoking, vaping, or cooking, it becomes potentially as psychoactive as marijuana, which is still considered a controlled substance. Nonetheless, the bill only considers the level of Delta-9 THC when assessing if a plant is hemp or marijuana.

Legal ambiguity regarding THCa, Delta-8, and Delta-10 THC threshold

Since the 2018 Farm Bill only tests for Delta-9 THC in cannabis when determining its compliance status, other potentially psychoactive cannabinoids make their way onto hemp dispensary shelves. Delta-8 THC, Delta-10 THC, and THCa are some cannabinoids that fall into this legal gray area. For example, a product with higher levels of Delta-8 THC is federally lawful hemp so long as it has no more than o.3% of Delta-9 THC.

However, the definitions are not as straightforward as they may seem. The Food and Drug Administration (FDA) often requires a “total THC” test before the plant is harvested to ensure its potentially psychoactive components do not exceed thresholds.

Nonetheless, the Drug Enforcement Administration (DEA) only tests for Delta-9 THC and does not seem to care if the plant was grown by a licensed grower. In other words, there are ways that businesses may try to get around the “total THC” tests [5].

Is Delta-9 THC Legal in Tennessee?

THCa and the future of the Farm Bill

Congressional discussions about the possible hemp provisions of the upcoming Farm Bill began brewing in the summer of 2022.

The House Agriculture Subcommittee on Biotechnology, Horticulture, and Research held a congressional panel to pre-empt issues important to hemp industry stakeholders and regulators.

Panelists brought up these issues:

Revisiting the FDA’s position on CBD products for the new Farm Bill
Increasing the allowable Delta-9 THC levels from 0.3% to 1% for hemp-based products
Revising bank regulations and easing limitations for hemp companies
Doing away with the DEA’s lab testing requirement for hemp, as in the current Farm Bill
Implementing a USDA stamp for hemp to facilitate shipping between different state jurisdictions [2]

The THCa market might be affected by removing the DEA’s lab testing requirement, though even with the current rules, the DEA does not test for “total THC.”

Whether or not these proposed revisions will become the new standard is unknown. Still, these issues give hemp industry advocates a glimpse into what Congressional leaders may care about.

Will the THC threshold change in the 2023 Farm Bill?

The 2018 Farm Bill defines hemp as any derivative of the Cannabis sativa L. plant that contains less than 0.3 percent Delta-9 THC by dry weight. Though many farmers, businesses, and consumers benefit from this definition, struggling farmers seek to change the THC thresholds of allowable hemp.

Rick Fox, chair of the National Industrial Hemp Council’s Government Affairs Committee, says, “Unlike processors who are formulating final products for market, growers don’t have control over such [a] minuscule amount of THC.” He maintains that THC, like many other cannabis compounds, can fluctuate based on weather and other factors. These unknowns make hemp production challenging to maintain [6].

As a result of changing weather and other conditions, farmers may not know whether they have legal or illegal hemp or illegal marijuana in their fields until harvest. Thus, hemp farmers struggle to get bank loans because, without knowing their crops’ viability, banks are wary of lending to them.

Erica Stark, executive director of the National Hemp Association (NHA), told Cannabis Business Times that she anticipates a solid push to raise the THC threshold for hemp to 1% in the 2023 Farm Bill.

“That’s certainly important for a whole lot of people to alleviate some of the pressures that cultivators have—because the reality is that the end products are going to consumers,” says Stark. “That needs to be the focus of compliance testing, not so much what’s happening on the farm [7].”

THCa and State Compliance: Is it Legal in My State?

Potential new CBD regulations

Under the 2018 Farm Bill guidelines, the legality of even the popular non-psychoactive cannabinoid CBD is complicated. For instance, CBD derived from marijuana (any cannabis plant containing more than 0.3 percent Delta-9 THC) is illegal. At the federal level, CBD derived this way is considered a Schedule 1 substance. This seems counterproductive and confusing since CBD is not even a drug.

On the other hand, CBD derived from federally compliant hemp (containing less than 0.3 percent Delta-9 THC per dry weight) is not illegal because hemp is not a controlled substance. This distinction is called a ‘source rule’ because CBD is not identified on the Controlled Substances Act schedule. Given these oversimplified categorizations, many feel there is much room for improvement in CBD regulation [8].

THC, THCa, and the future of the Farm Bill

Jonathan Miller, general counsel for the coalition U.S. Hemp Roundtable, says their top priority is to define the FDA’s role regarding hemp and cannabinoid regulation.

“That might be part of the Farm Bill,” he told The Hill, “it might be something separate, but it is our top priority when it comes to 2023.” Miller encourages leaders of the new Farm Bill to raise the allowable THC threshold for hemp to 1 percent [9].

The Future of the Wholesale THCa Flower Industry

Key takeaways on THCa and the future of the Farm Bill

Until Congress passes new legislation that changes the 2014 and 2018 Farm Bill rules, consumers can enjoy THCa hemp flower even as regulatory uncertainty hovers. Ready for the best? You can buy THCa flower today! As long as a product complies with the 2018 Farm Bill’s definition of hemp, the FDA’s stance is that hemp-derived products are allowed.

As congressional leaders assess the benefits and risks of potentially psychoactive cannabinoids like THCa, they weigh safety risks as well as the demand for human consumption. If you’re in the camp of THCa fans, you’re likely keeping your fingers crossed that some of the legal standards regarding THCa remain open. If the appropriate safeguards are in place, the thinking goes, and businesses are kept from misleading consumers when marketing intoxicating products, what could be the harm?

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

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

Frequently Asked Questions

Does THCa pose health risks?

This question is up for debate at the next Farm Bill congressional meeting. There isn’t evidence that THCa poses any significant health risks for most people. Check with your healthcare provider to discuss your own situation.

Is THCa federally compliant?

Under the Farm Bill, if a THCa product is derived from lawful hemp, and contains no more than 0.3% Delta-9 THC, it is federally compliant.

What’s the limit for THCa flower?

THCa products from hemp must contain no more than 0.3% Delta-9 THC, to be federally compliant. THCa flower or THCa products may have higher amounts of THCa and still be federally compliant, if the THCa is from lawful hemp. Limits may be different in states that permit the use of adult use marijuana and/or medical marijuana.