THCA flower has become one of the most controversial and talked-about products in the hemp market today. Some see it as a legal loophole, while others argue that it fits squarely within federal hemp regulations. Let’s break down what the law actually says and how it compares to what is happening in the industry.
What Is THCA Flower?
THCA flower is hemp flower that is high in THCA (tetrahydrocannabinolic acid) and low in Delta-9 THC when harvested. Under federal law, hemp is defined as cannabis containing no more than 0.3% Delta-9 THC by dry weight. Since THCA itself is not intoxicating until heated (decarboxylated), it raises legal and regulatory questions.
Is THCA Flower Legal?
Federal Law (2018 Farm Bill)
- The 2018 Farm Bill defines hemp as cannabis with no more than 0.3% Delta-9 THC by dry weight.
- If THCA flower meets this requirement, it is technically hemp and legal under federal law.
DEA’s Position
- The DEA argues that the total THC standard (including potential Delta-9 THC after decarboxylation) should apply, making THCA flower illegal.
- However, this stance was not issued as a formal regulation but as an opinion letter.
Fourth Circuit Court Ruling
- In September 2024, the Fourth Circuit Court of Appeals reaffirmed that the 2018 Farm Bill only considers Delta-9 THC levels, not total THC.
- This ruling strengthens the argument that THCA flower remains legal under federal law.
State-Level Regulations
State laws vary significantly:
- Delta-9 Standard States (e.g., North Carolina): THCA flower that meets the 0.3% Delta-9 THC limit remains legal.
- Total THC Standard States: Some states include THCA in their THC calculations, effectively banning THCA flower.
- Law Enforcement Actions: In some states, retailers and distributors face legal scrutiny despite operating within federal guidelines.
The USDA vs. Retail Market Confusion
- The USDA regulates hemp cultivation and requires testing using the total THC standard before harvest.
- This standard does not apply to post-harvest, finished consumer goods.
- Many law enforcement agencies mistakenly apply USDA cultivation standards to retail products, leading to seizures and enforcement actions.
What This Means for the Hemp Industry
- THCA flower is legal under federal law as long as it meets the Delta-9 THC standard.
- State laws vary, so businesses must stay informed about local regulations.
- Enforcement actions are increasing, making compliance and advocacy critical.
How to Protect Your Business
1. Advocate for Clear Regulations
- Join industry groups like the US Hemp Roundtable or Americans for Healthy Alternatives Association.
- Engage with local lawmakers and educate them about the realities of THCA flower.
2. Ensure Compliance
- Regularly test products and maintain updated Certificates of Analysis (COAs).
- Avoid making misleading claims that could attract regulatory scrutiny.
3. Seek Legal Guidance
- Work with an attorney to navigate evolving regulations and minimize risk.
Conclusion
THCA flower remains a legal yet highly debated product in the hemp industry. Federal law supports its legality under the Delta-9 THC standard, but conflicting state laws and enforcement actions create challenges. Businesses must stay informed, advocate for fair policies, and ensure compliance to thrive in this evolving market.
If you have questions about THCA flower and whether it’s a good addition to your business, give us a call. Let’s discuss the risks and opportunities together.
