THCA: Part two.

Yes, it’s legal. But in reality, it’s really, really hard to have a legal THC, A product that stays legal. So let’s talk about how, why and what, if anything, there is to do about that.

I’m Morgan Davis. I’m a cannabis attorney in Raleigh, North Carolina. Let’s talk about how to keep your business protected and thriving.

As we’ve discussed in a previous video, THCA is a precursor to Delta-9, THC. It’s a very popular as a product right now, both as loose flour in fruit rolls and as a an extract add added to any number of products. The last video I did, there were a lot of comments of people, some people who thought that I was very much against THC or some people who understood that it’s yes, both found in the regulated market, regulated cannabis market and hit market.

2018 Farm Bill Definition

But there seem to be some very strong reactions. So let’s talk about it a little bit more to it as a derivative of hemp at the federal level is legal. If we look at the 2018 Farm bill definition of hemp, all hemp and hemp derivatives, as long as they fall not more than 0.3% Delta nine by dry weight, it’s legal.
That is the only limitation. So what’s been happening in the market that what’s been happening in the market is they found that if you take THC A so whether you have a hemp plant or cannabis plant in general and you cut it early when it’s very high in THC but very low in Delta nine because it hasn’t converted yet, then you have a compliant product.

The idea is that you get it all the way to the consumer, who then heats it up either by smoking it or consuming it in some way, and it converts to Delta nine. And it’s a very potent product that lots of consumers love. We’re not even going to get into. Should we be okay with that? Should we not be okay with that?

It’s very clear that as a band that it is fine as long as it is below the federal limit. There’s an asterisk to that, which is states have their own laws and you have to comply with state law as well. And state law is a lot more complicated than the federal limitation. So we’ll get into that in a second.

Federal vs State THCA Legalities

But we’re just talking about the federal level. Here’s the problem. At the federal level, it’s legal. State level depends on your state. In reality, in practice, it is very difficult to have a product that stays compliant. What that means is does it always, from the point of when it’s pulled from the plant to when it gets to the consumer, doesn’t stay below the limit?

THC converts to Delta-9 by exposure to heat. It doesn’t have to be high heat. Long term exposure to sunlight. Sitting in a hot warehouse while it’s waiting to be distributed. Sitting in a hot car or vehicle while it’s being shipped from one location to the other. All of these things can cause THC-A to start to convert to Delta nine.

Certificate of Analysis

The common practice in this industry right now is that the manufacturer or the grower pulls the flower, sends it off for testing, gets a certificate of analysis (COA) that says it’s compliant, and then ships it out from there. And because they’re not required to do so by under most states laws, most distributors and retailers are not getting their own testing done.

They are relying on the survey that was done when the flower was pulled. But that doesn’t take into account any of the environments that that product has been in up until the point where it reaches its next destination. Some might say, well, why do we care? Why is that my responsibility if I’m not required to by law? And what does it matter?

And I would agree with you, but for the fact that that will not prevent law enforcement from holding you responsible for possessing illegal substances. Because most states either mirror the federal limitation or they have a higher standard called total THC. We talked about in another video that you can go watch.

Bottom line, if you can’t control the environment, if you can’t can keep it from converting, you may be in possession of something that is above the federal legal limit and probably your state’s limit, which means it goes from hemp to marijuana and law enforcement.

If you’re lucky, you might get somebody who understands the difference. Who’s been trained? Who’s seen it. They know they come in. They ask you for the COA, maybe they do a controlled by. They send it off for testing. They come back in and say, listen, you’re selling hot product. You need stop doing it. They give you a warning.

Or maybe they ask to see or see of it, or they have a conversation with you about it. Or maybe they go get a search warrant. They come back to your shop, they seize all of your product and they charge you with a criminal offense. Maybe your employees to all of these are options and everything in between. And it’s not just happening in North Carolina, it’s happening in Texas, it’s happening in Indiana, and it’s happening all over the place.

And there are lots of people in this industry who will tell you that, well, you just get a COA that’s compliant and that should cover you.

That might that might work, but it might not. And you might find yourself sitting in a courtroom facing criminal charges that then an attorney like myself has to go explain to a day or a judge the fact that you really haven’t done anything wrong and you don’t knowingly you’re not knowingly in possession of marijuana, that this is, in fact, just an issue of a lack of regulation in an industry, which is the truth.

But will a Certificate of Analysis stop you from having your product seized?

Will it stop you from having to pay a lawyer like me to represent you in court? Will it stop you from sitting in a jail cell for a while and having to pay bond or having to deal with losing manufacturers or losing retail partners because you don’t have product?

No, it won’t. So what what do you do about that? There are certain things that you can do to be to take matters into your own hands and try to keep a product as compliant as long as possible. We know that heat and light exposure are the biggest factors in terms of conversion. So one buy from a manufacturer or a cultivator that you have a good relationship with who has a license under either their state program or under the USDA.

Get a COA from them, ideally within the last 60 to 90 days, even sooner, if possible, get the product shipped in a way where it can be temperature controlled when it arrives into wherever you’re storing it, store it in a temperature controlled facility without exposing it to heat or light. My advice be on that. Advise the people who are buying from you, whether it’s other retailers, other distributors or consumers, about what will happen when this product is exposed to heat or light and that it’s compliant now, but it could not be compliant if you allow it to say sit in a hot car for days on end, since most consumers don’t.
But we’re talking about disposable cards or even flour. They don’t smoke all of it at once. So then they start carrying around in their car. It’s converting. Some of it’s converting while they’re using it. Some people might say that not knowing is better than knowing, and that once I know I have to do something about it. So I’ll just not know.

Pushing off liability

And in terms of pushing off liability, I get that. I do get that. That is a business strategy. It does not guarantee that you will avoid criminal investigation or criminal prosecution, as I’ve said so many times. The line between civil and regulatory issues in this business and criminal issues in this business is very thin still. It’s very thin.

And this is a situation where it’s thinner than most because of how easily this this cannabinoid converts. So make sure that you’re taking internal measures to in in any way you can control for these factors. And if you need some help coming up with those protocols or coming up with language to educate your consumers or your retail partners, give me a call.