Legal Opionion Letter

What are THCA Hemp Products?

“THCA hemp products” refer to cannabis products with delta-9 THC levels that do not exceed 0.3% by dry weight, but which contain high levels of THCA. These products are created specifically to meet the requirements for hemp under federal law.

What is THCA?

THCA stands for tetrahydrocannabinolic acid, a cannabinoid produced abundantly by the cannabis plant. THCA is non-intoxicating in its natural form, but when exposed to heat, light, or time, it converts into delta-9 THC, which is psychoactive. This transformation, called decarboxylation, occurs when THCA hemp products are smoked or vaped.

Will Smoking or Vaping THCA Hemp Products Make Users Feel “High”?

While THCA itself is non-intoxicating, it is possible that smoking or vaping THCA hemp products may result in intoxication or a “high” sensation for some users. We strongly recommend informing customers of the potential for intoxication when using this product. Additionally, we advise that THCA hemp products should not be sold to minors.

Will Using THCA Hemp Products Cause Users to Fail a Drug Test?

Yes, using THCA hemp products can cause users to fail a drug test. THCA hemp products contain cannabinoids, including THC, which could lead to a positive test result. Therefore, individuals subject to drug testing should avoid using THCA hemp products.

Are THCA Hemp Products Lawful Under Federal Law?

Yes, under federal law, THCA hemp products are lawful. The 2018 Farm Bill distinguishes between lawful hemp and unlawful marijuana based on the delta-9 THC concentration, not THCA levels. As long as the cannabis has no more than 0.3% delta-9 THC by dry weight, it is considered lawful hemp, regardless of THCA or other cannabinoids like CBD. Furthermore, hemp is not considered a controlled substance under the federal Controlled Substances Act [1].

What Does the DEA Say About THCA Hemp Products?

The DEA considers THCA hemp products to meet the legal definition of hemp. The DEA states that material derived from the cannabis plant, such as tissue cultures or genetic material, with a delta-9 THC concentration of no more than 0.3% on a dry weight basis is legal hemp and not controlled under the CSA [2].

Have Federal Courts Ruled on THCA Hemp Flower?

No federal courts have specifically ruled on THCA hemp products yet. However, in previous cases, such as AK Futures LLC v. Boyd St. Distro, LLC, the Ninth Circuit Court of Appeals confirmed that delta-9 THC concentration is the only legal metric to distinguish hemp from marijuana. This ruling supports the legal status of THCA hemp products as long as they meet federal requirements for delta-9 THC [3].

Are THCA Hemp Products Lawful in All States?

No, state laws vary widely on the legality of THCA hemp products. Some states use a calculation that includes both THCA and delta-9 THC (referred to as total THC) to determine the legality of hemp products. In these states, THCA hemp products might not be considered legal. We strongly recommend consulting with a lawyer to verify the legal status of THCA hemp products in your specific state.

Can THCA Hemp Products Be Shipped Across State Lines?

Yes, federal law permits the interstate transfer of hemp products, including THCA hemp flower. 7 USC § 1621 subsection 10114(b) prohibits states or tribes from blocking the transportation or shipment of lawful hemp or hemp products across their borders, provided they meet the legal requirements of the 2018 Farm Bill[4].

Is It Lawful to Smoke or Vape THCA Hemp Products in Public or Have an Open Package in a Car?

Due to the legal ambiguities surrounding THCA hemp products, and varying state laws, we do not recommend consuming THCA hemp products in public or having an open package in a vehicle. We also recommend selling the product in pre-packaged, sealed containers with clear labeling to avoid confusion.

How Can You Be Sure That the THCA Hemp Products You Are Purchasing Meets Legal Requirements for Hemp?

We recommend reviewing the Certificate of Analysis (COA) for each batch of THCA hemp products. A COA will indicate the levels of delta-9 THC to ensure compliance with federal regulations. Hempensary provides a current COA with all of our hemp products to demonstrate compliance with the 0.3% delta-9 THC threshold at the time of sale. If your state uses the total THC calculation, we recommend consulting an attorney to ensure the product is legal in your jurisdiction.

How Should You Store THCA Hemp Products?

To preserve the legality of THCA hemp products, store them in a cool, dry, dark place. Exposure to heat and light can cause THCA to decarboxylate and convert into delta-9 THC, potentially pushing the product above the 0.3% delta-9 THC limit. Proper storage helps maintain the integrity and legality of the product.

Does Hempensary Have a Legal Opinion Letter About THCA Hemp Products?

Yes, Hempensary has obtained a legal opinion letter regarding the legal status of THCA hemp products. Please be advised that this letter is specific to Hempensary and should not be considered legal advice for any other entity or individual.

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Sources

1. 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. 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. AK Futures LLC v. Boyd St. Distro, LLC, 35 F.4th 682 (9th Cir. 2022).
4. 7 USC § 1621 subsection 10114(b): No State or Indian Tribe shall prohibit the transportation or shipment of hemp or hemp products produced in accordance with subtitle G of the Agricultural Marketing Act of 1946 (AMA) (as added by section 10113).
5. 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.

Hempensary Lab Testing Certificates of Analysis (COAs)

All Hempensary hemp products are 0.3% THC or less. You can view our lab results here.