What is THCa Hemp Flower?
THCa hemp flower refers to cannabis buds with delta-9 THC levels that do not exceed 0.3% by dry weight, but which have high levels of THCa.
What is THCa?
THCa stands for tetrahydrocannabinolic acid, a cannabinoid produced abundantly by the cannabis plant. THCa is non-intoxicating; however, under conditions such as heat, light, and over time, it converts to delta-9 THC, which is intoxicating. This conversion process is called decarboxylation and occurs when THCa flower is smoked or vaped.
Will Smoking or Vaping THCa Hemp Flower Make Users Feel “High”?
Although individual experiences vary, it is possible for users to feel intoxicated or “high” after smoking or vaping THCa hemp flower. It is advisable to inform customers of this possibility and to avoid selling THCa hemp flower to minors.
Will Using THCa Hemp Flower Cause Users to Fail a Drug Test?
Yes. THCa hemp flower contains cannabinoids, including THC, which may cause a user to fail a drug test. Therefore, individuals subject to drug testing should avoid using THCa hemp flower.
Is THCa Hemp Flower Lawful Under Federal Law?
Yes. Under federal law, harvested THCa hemp flower is lawful. The 2018 Farm Bill differentiates between lawful hemp and unlawful marijuana based on delta-9 THC levels, not THCa. Cannabis with no more than 0.3% delta-9 THC by dry weight is considered lawful hemp, regardless of THCa or other cannabinoids like CBD. Additionally, the federal Controlled Substances Act excludes hemp from the definition of marijuana, making it not an illegal controlled substance under federal law.
What Does the DEA Say About THCa Hemp Flower?
The DEA defines THCa hemp flower as lawful hemp. According to the DEA, “material that is derived or extracted from the cannabis plant such as tissue culture and any other genetic material that has a delta-9 tetrahydrocannabinol concentration of no more than 0.3 percent on a dry weight basis meets the legal definition of ‘hemp’ and is thus not controlled under the CSA.”
Have Any Federal Courts Ruled on THCa Hemp Flower?
No federal courts have specifically ruled on THCa hemp flower. However, the Ninth Circuit Court of Appeals has stated that the only statutory metric for distinguishing controlled marijuana from legal hemp is the delta-9 THC concentration level, supporting the legal status of THCa hemp flower.
Is THCa Hemp Flower Lawful in All States?
No. State laws differ regarding the sale and possession of harvested hemp and hemp flower, and whether a license or permit is required. Some states consider both delta-9 THC and THCa levels to determine legality, using a “total THC” calculation. If your state uses this calculation for post-harvest hemp, consult a lawyer before possessing or selling THCa hemp flower.
Can THCa Hemp Flower Be Shipped Across State Lines?
Yes. Federal law authorizes the interstate transfer of hemp, including THCa hemp flower. According to 7 USC § 1621 subsection 10114(b), states and Indian tribes cannot prohibit the transportation of hemp products through their borders, even though state laws regarding hemp products vary.
Is It Lawful to Smoke THCa Hemp Flower in Public or Have an Open Package in a Car?
Due to varying state laws and confusion about the legal status of THCa hemp flower, it is not recommended to smoke it in public or have an open package in a vehicle. It is also recommended that it be sold in pre-packaged, sealed containers with labels clearly stating that it is lawful hemp.
How Can You Ensure the THCa Hemp Flower You Are Purchasing Meets Legal Requirements?
Review a Certificate of Analysis (COA) with your attorney. A COA shows the levels of cannabinoids, including delta-9 THC, in a hemp product. Cookies Hemp provides a current COA for its products, ensuring compliance with federal law at the time of distribution. If your state uses a total THC calculation for post-harvest cannabis flower, THCa hemp flower may not be legal in your state. Consult a lawyer before receiving, possessing, or selling it.
How Should You Store THCa Hemp Flower?
Store THCa hemp flower in a cool, dark, dry location to prevent decarboxylation, which converts THCa into delta-9 THC, potentially making the product illegal. Exposure to heat and light accelerates this conversion, so proper storage is essential.
SOURCES
1. See 7 U.S.C. § 1639o(1) (2018 Farm Bill): “The term ‘hemp’ means the plant Cannabis sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”
2. See 21 U.S.C. § 802(16)(B) (Controlled Substances Act): “The term “marihuana” does not include— (i) hemp, as defined in section 1639o of title 7.”
3. You can read the DEA’s letter here: https://s3.documentcloud.org/documents/21580238/21-7692- shane-pennington-cannabis-seeds- tissue-genetic-material-11-18-21-signed-1.pdf
4. AK Futures LLC v. Boyd St. Distro, LLC, 35 F.4th 682 (9th Cir. 2022)
5. 7 USC § 1621 subsection 10114(b) can be read here: https://uscode.house.gov/statviewer.htm?volume=132&page=4914#
6. A total THC calculation adds the delta-9 THC amount to 87.7% of the THCa amount to see if the total THC does not exceed 0.3%. Fortunately, most COAs show the total THC amount in addition to delta-9 THC so that you do not need to do the calculation yourself.