THCA

THCa Hemp: Legal & Factual Information

April 2023

We are providing information about THCa hemp. This information is not intended to be legal advice and should not be relied upon as such. Please consult a lawyer if you have legal questions.

What is THCa hemp flower?

“THCa hemp flower” is the name for 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” is the abbreviation for “tetrahydrocannabinolic acid”, a cannabinoid produced in abundance by the cannabis plant. THCa does not produce intoxication; however, under certain conditions, including heat, exposure to light, and time, it can convert to delta-9 THC, which does have an intoxicating effect. The conversion from THCa to delta-9 THC is known as “decarboxylation” and occurs when THCa flower is smoked or vaped.

Will smoking or vaping THCa hemp flower make users feel “high”?

Although everyone is different, it is possible that a user will feel intoxicated or “high” after smoking THCa hemp flower.

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 should not use THCa hemp flower if they are subject to drug testing.

Is THCa hemp flower lawful under federal law?

Yes. Under federal law, harvested THCa hemp flower is lawful. This is because the federal 2018 Farm Bill distinguishes between lawful harvested hemp and unlawful marijuana based on the levels of delta-9 THC, not THCa. (1) Harvested cannabis, including its flowers and buds, with no more than 0.3% delta-9 THC by dry weight is lawful hemp, regardless of the amount of THCa or any other cannabinoid, such as CBD, that it contains. Additionally, the federal Controlled Substances Act, which regulates drugs, removes hemp from the definition of marijuana. In other words, hemp is not an illegal controlled substance under federal law. (2)

What does the DEA say about THCa hemp flower?

THCa hemp flower meets the DEA’s definition of 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.” (3)

Have any federal courts ruled on THCa hemp flower?

No. However, the federal Ninth Circuit Court of Appeals has stated the following regarding another type of hemp product, which supports the legal status of THCa hemp flower: “the only statutory metric for distinguishing controlled marijuana from legal hemp is the delta-9 THC concentration level.” (4)

Is THCa hemp flower lawful in all states?

No. State laws differ regarding whether or not harvested hemp and hemp flower can be sold or possessed and if a license or permit is required in order to handle it. Additionally, some states calculate the concentrations of both delta-9 THC and THCa, rather than just delta-9 THC, to determine if a harvested cannabis bud is lawful hemp or unlawful marijuana. This calculation, in which both THCa and delta-9 THC are used to determine the legal status of a harvested hemp flower, is referred to as “total THC”. It is the calculation used in all states for pre-harvested hemp. The total THC calculation is also used in some states, but not all states, for harvested hemp and/or hemp products. You should not possess or sell THCa hemp flower if it is illegal in your state. You should consult with a lawyer if you are unsure of the legal status of THCa hemp flower in your state.

Is THCa hemp flower lawful in Ohio?

Ohio, like most states in the country, simply refers to the Farm Bill, meaning that the state is not one of several that have totally banned THCA flower and all other THCA product types. Like the Farm Bill, Ohio law does not place limits on how much flower a person can buy, how much they can possess, or how strong the product may be in terms of its cannabinoid concentration. This is good news, of course, as it means that you’re totally free to buy and explore THCA flower in whatever way you’d like (as long as you’re a legal adult, of course), without having to worry about breaking the law in the process.

The reason for THCA flower’s legality is the fact that the state does not follow the “total THC” rule that some states have employed. Basically, some states do not permit sales of products containing more than 0.3% of any THC cannabinoid, including THCA. For now at least, Ohio does not follow this rule, allowing unlimited amounts of THC cannabinoids other than delta 9 (in hemp-derived products).

Can THCa hemp flower be shipped across state lines?

Yes, the interstate transfer of hemp, which includes THCa hemp flower, is authorized by federal law. 7 USC § 1621 subsection 10114(b), states in relevant part: “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) through the State or the territory of the Indian Tribe, as applicable.” (5) Although state laws vary with respect to hemp and hemp products, it is absolutely clear that states and Indian tribes may not prohibit the transport of them through their borders.

Is it lawful to smoke THCa hemp flower in public or to have a package of it open in a car?

Because state laws vary regarding THCa hemp flower, and also due to the current confusion about its legal status, it is not recommended to smoke it in public or to have an open package of it in vehicles. Additionally, we recommend that it be sold to consumers only in pre-packaged, sealed bags or containers with labels clearly stating that it is lawful hemp.

How can you be sure that the THCa hemp flower you are purchasing meets the legal requirement for hemp?

We recommend reviewing a lab report, called a Certificate of Analysis (COA), in conjunction with your attorney. A COA shows the levels of cannabinoids, including delta-9 THC, in a hemp product. Importantly, if your state uses a total THC calculation (6) to determine whether post-harvest cannabis flower is lawful, then THCa hemp flower is probably not legal in your state and we recommend that you consult a lawyer before receiving, possessing, or selling it.

How should you store THCa hemp flower?

THCa hemp flower should be tested to ensure legal compliance. It is important to understand that THCa hemp flower will change form and become illegal marijuana if the THCa in it decarboxylates and raises the concentration of delta-9 THC to above 0.3%. In addition to the natural process of decarboxylation over time, THCa will also convert to delta-9 THC when it is exposed to heat and light. We strongly recommend storing THCa hemp flower in a cool, dark, dry location in order to limit the amount of THCa that is unintentionally converted to delta-9 THC through the process of decarboxylation.