Lately there has been a lot of discussion in the hemp industry regarding “THCA” products, such as THCA flowers and vapes, and whether these popular products fall under the definition of “hemp” and are thus legal. Law enforcement and other government officials have tried to argue that these products are illegal marijuana, even when they contain less than 0.3% Delta-9-THC.
Delta-9-THCA, commonly referred to as THCA, is tetrahydrocannabinolic acid, a precursor to Delta-9-THC that is produced naturally by the cannabis plant, including hemp and marijuana. It is chemically distinct from Delta-9-THC. Over time, however, or if exposed to heat or dry conditions, the THCA in a product will degrade into Delta-9-THC.
Another controversy surrounding THCA products is whether federal and state hemp laws require testing consumable hemp products for THCA in addition to their Delta-9-THC content, the combined metric referred to as “Total THC.” There is also debate as to whether the amount of THCA in a product must be counted under the 0.3% limit of THC, which determines whether a product is a legal hemp product. A lot of cannabis tests, for example, use heat that automatically converts all the THCA in a sample into Delta-9-THC. So, a product that has 20% THCA and 0.1% Delta-9-THC will definitely test over 0.3% Delta-9-THC if tested using heat.
We don’t agree that “Total THC” is the proper metric for testing products containing hemp-derived cannabinoids, especially since THCA and Delta-9-THC are chemically distinct cannabinoids. Others disagree. The Drug Enforcement Administration (DEA), for example, has weighed in on the legality of THCA several times. In June 2023, the DEA issued a letter regarding the legality of Delta-8-THC, HHC, THCA, and other lesser known cannabinoids. The DEA concluded that synthetically-derived Delta-8-THC is illegal, a conclusion roundly rejected by scientists and courts, and that THCA is too.
Specifically, the DEA asserted that THCA must be included in tests and included in determining whether a product’s Delta-9-THC is under the 0.3% limit. The DEA issued another letter in May 2024 reiterating its belief that THCA must be included in the 0.3% Delta-9-THC limit when testing for hemp compliance. Under their methodology, almost all THCA products on the market right now would be considered illegal.
Fortunately, the DEA doesn’t get to make law–Congress does that. The DEA has previously already tried to assert that Delta-8-THC is illegal, noted above, and lost in the case AK Futures v. Boyd Street Distribution. In that case, the Ninth Circuit Court of Appeals held that the DEA cannot pass rules or take positions on the legality of certain substances if those positions are contrary to the plain language of the laws passed by Congress. Since the 2018 Farm Bill legalizes “all derivatives, extracts, and cannabinoids” in cannabis, that includes Delta-8-THC. The same logic should apply to THCA and other cannabinoids derived from hemp.
Retailers, distributors, manufacturers, and consumers should be aware of the brewing legal controversy surrounding THCA products. Already, there have been over a dozen raids in Georgia involving THCA, with police bringing felony marijuana trafficking charges against business owners as if they were drug dealers. And because the GBI and other law enforcement agencies use heat in their cannabis tests, these products are routinely testing “hot,” or non-compliant. It’s important to have an expert explain to courts and juries that these testing methodologies are flawed.
If you are in the hemp business and are looking for advice or for help fighting against unlawful government overreach or raids of your business, contact our firm immediately. We have helped dozens of small businesses in Georgia and are ready to help you.
