In the rapidly evolving landscape of cannabis regulation, Tetrahydrocannabinolic acid (THCA) stands at the crossroads of legal ambiguity and burgeoning popularity. As we venture deeper into this unsettled territory, it becomes increasingly clear that the legal status of THCA hinges significantly on nuanced interpretations of recent agricultural policy changes and state-specific regulations.
The 2018 Farm Bill marked a watershed moment for the cannabis industry, particularly with its redefinition of hemp-derived cannabinoids, setting them apart from the federally controlled substance designation of marijuana. This legislative shift opened doors for the proliferation of "minor" cannabinoids, including THCA, sparking debates over the legal interpretation of their status.
Contrary to the widespread and often misleading assertions of complete legality, THCA occupies a precarious position within the legal framework. Industry insiders and regulators alike caution against the oversimplification of THCA's legal status, evidenced by recent federal and state actions which underscore the complexities and potential legal jeopardy associated with THCA commerce.
With the imminent expiration of the 2018 Farm Bill and the legislative anticipation surrounding the 2023 Farm Bill, the future regulatory landscape of hemp-derived cannabinoids, including THCA, is under keen scrutiny. The ongoing dialogue and legislative review put a spotlight on the need for clarity and comprehensive regulation in addressing the legal ambiguity surrounding cannabinoids.
Understanding THCA: The Precursor and the Policy
THCA's distinction stems from its chemical nature as a precursor to THC, the primary psychoactive compound in cannabis. Found in the flowers and leaves of the cannabis plant, THCA undergoes decarboxylation upon exposure to heat, transforming into psychoactive THC. This process, along with THCA's presence in the cannabis plant, places it in a unique position concerning legal interpretation.
Legislative efforts, particularly the 2018 Farm Bill, sought to delineate legal boundaries for hemp-derived compounds by establishing a delta-9 THC concentration threshold of no more than 0.3 percent on a dry weight basis. However, this "loophole," as it is commonly referred to, becomes contentious when considering the conversion of THCA to THC, challenging simplistic legal categorizations.
Notably, Congress and regulatory bodies have acknowledged THCA in the context of hemp regulation, emphasizing post-decarboxylation testing requirements to determine legal hemp status. This explicit consideration of THCA in legislative and regulatory frameworks highlights the nuanced approach to its legal classification and challenges prevailing misconceptions about its wholesale legality.
State-Level Regulations and Varied Interpretations
While federal legislation provides a foundation, state-level regulations introduce an additional layer of complexity in the legal narrative surrounding THCA. Increasingly informed and cautious lawmakers express reservations about THCA and other potentially intoxicating cannabinoids, leading to varied regulatory responses across states.
Some states have explicitly restricted the production, sale, and consumption of THCA products, employing legislative strategies to delineate permissible THC levels in hemp-derived products. California, for example, specifies a "Total THC" standard, encompassing THCA in its calculation of legal THC limits. Such state-specific regulations reflect a broader trend towards stringent oversight and the differentiation between legal hemp and controlled marijuana markets.
Navigating the Uncertain Terrain
The legal landscape of THCA epitomizes the challenges and intricacies of cannabis regulation in a post-2018 Farm Bill era. The convergence of federal oversight, state-level regulation, and the chemical complexity of THCA demands a nuanced understanding and careful navigation by stakeholders in the cannabis industry.
As legislative bodies contemplate the future of hemp-derived cannabinoid regulation, the cannabis community must remain vigilant, informed, and adaptable in navigating the shifting legal terrain. The dialogue surrounding THCA underscores the need for clear, comprehensive legislation that addresses the unique properties of cannabinoids and their place within the broader context of cannabis regulation.
In this time of legal uncertainty and regulatory evolution, the industry's path forward hinges on collaborative efforts to demystify the legal status of THCA and advocate for policies that foster innovation while ensuring public safety and compliance.
The quest to clarify the legal standing of THCA demonstrates the ongoing dialogue between policy, science, and industry, highlighting the collective responsibility to shape a coherent and equitable regulatory framework for cannabis.
References
[1] Can You Pass the Acid Test? Critical Review and Novel Therapeutic Perspectives of Δ9-Tetrahydrocannabinolic Acid A – PMC (nih.gov)
[2] THCA is multiplied by 0.877 under the formula set forth by the United States Department of Agriculture (USDA) for the testing and determination of “Total THC” in a pre-harvest analytical test. The remaining 0.123% is intended to account for the weight of the carboxyl group that is lost once the THCA is converted to THC.
[3] On June 24, 2021, Sean Mitchell, Chief of Intergovernmental Affairs for the DEA stated: “I’ll be very, very deliberate and clear. At this time, I repeat again, at this time, per the Farm Bill, the only thing that is a controlled substance is delta-9 THC greater than 0.3% on a dry-weight basis” “Town Hall with USDA and DEA” conducted by the Florida Department of Agriculture and Consumer Services (FLDACS) on June 24, 2021
[4] GreenLeafBrief: “Federal Court Rules Hemp-Derived Delta-8 THC is Lawful,” May 25, 2022
[5] Thus, “Total THC” in California is currently defined as (THCA) + (Delta-8 THC) + (Delta-9 THC) + (Delta-10 THC). Cal. Health & Safety Code § 111920 (l) and (m).
[6] Unlike federal law, California uses the term cannabis in place of marijuana.
[7] This is a well-settled issue in California. It pains us to learn that cannabis companies may not have been advised to comply with these oft-litigated requirements. Indeed, the Plaintiff’s bar in California began cracking down on Prop 65 violations in the cannabis industry nearly a decade ago, settling numerous cases for tens of thousands of dollars starting around the year 2015. See, DiPirro v. Grass Roots Nonprofit Collective, Inc., 11/06/2015, $33,000; DiPirro v. The Vapor Room Cooperative of San Francisco, Inc., 11/06/2015, $ 8,500.00; DiPirro v. The Love Shack Cooperative, Inc., 05/27/2015, $ 26,500.00; DiPirro v. LA Wonderland Caregivers Inc., 11/06/2015, $ 33,000.00; CAPA v. Telegraph Patients Group, Inc., 10/17/2017, $ 85,000.00; CAPA v. The Richmond Patient’s Group, Inc., 10/17/2017, $ 85,000.00.
[8] Unless approved by the FDA, which no product presently is.
[9] In the U.S., nearly $6 billion of products containing CBD were sold in 2021. CBD is a chemical compound naturally produced by the cannabis plant that does not cause the euphoric feeling, or “high,” that can result from more psychoactive compounds found in cannabis