August 10, 2023

THCA: It’s the hot new trend in the Cannabis Industry, but is it legal?!

It’s the hottest new trend and intoxicating him products. Is it legal? Hey 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. DACA is one of many, many isomers available in the cans plant. Delta nine THC is the one we talk about most often. Delta eight THC has been very popular for the past couple of years.

The hottest trend that seems to be taking over right now is THCA.

THCA as an isomer is something that is naturally found in the cannabis and hemp plant. It is not listed in the 2018 farm bill. The only one, as we’ve discussed before that’s listed as the delta is Delta nine. THC. However, THC has become a hot topic as it grow, as it has grown as a trend.

There’s a question of is it legal? And the reason is DACA when heated, turns into Delta nine THC. So as products are becoming more and more popular made with THC, the question becomes if you sell a product that is THC originally and is federally compliant with the farm bill and then it converts to Delta nine, THC. How is that legal?

As we’ve discussed many times before, in the 2018 Farm Bill, hemp became an exemption from the Controlled Substances Act. As long as it contained less than 3%. Delta 90. Harley is tired of hearing about it too. Two Delta nine. THC is the only isomer that’s listed in the 2018 and so from that point forward, everybody has belief and several and at least one court has found that that is the only isomer that’s important when determining whether or not something is hemp or cannabis and therefore is a legal product federally.

States for a while had the same standard. That is starting to change on a state by state basis.

Some states are now have what’s called a total THC standard, where they actually take into account to account not only the Delta nine THC concentration, but also the THC concentration. The total THC total THC number must still be below 0.3% by dry weight.

THC has become popular because you can have a product. A lot of times now it’s flower, so it’s actually b green material that has THC normally sprayed on it as an extract and once heated converts into Delta 90 AC when it is sold, when it is produced by whoever’s producing it, whether it’s the grower distributor or manufacturer, whoever and is sold it is compliant because it falls under the point 3% Delta nine THC limitation.

However, the second it’s heated, it goes through a process called decarbonization and at that point converts into Delta nine THC, and more often than not is going to go above the federal limit and state limit. In a lot of cases. This is very, very exciting for the industry because it is yet another way in which people who do not live in regulated markets can get access to regulated cannabis essentially outside of an outside regulated market, which is very important for people who have a need for it.

And we’ve talked about before, a lot of people have a need or want for regulated cannabis. And until federal legalization, they’ve got to find other ways around it. Enter intoxicating hemp products, THC being the newest and most novel at the federal level. At the moment, it seems that everyone agrees THC is permissible under the 2018 farm bill. The DEA is position up until very recently has been pretty consistent that as long as it complies with the point 3% delta nine THC limitation, it is hemp and therefore it is exempt from the Controlled Tax Act.

In addition to that, as we’ve talked about before, the ninth Circuit found in a case about a year ago, maybe more now, the AK futures v Boyd St case that the only isomer important for determining whether or not something is here is delta nine THC and they stated that if Congress wanted it to be differently than Congress should have made it differently or should make it differently.

All that would mean that THC on the federal level, as long as it complies with the point 3% Delta 19. If the limitation is legal, then you need to look at where you’re distributing it. As I said, states have started to regulate not just on the Delta 92 standard, but also a total THC, total THC standard. So don’t assume that because it’s federally legal, therefore you can sell your product everywhere if you’ve got a THC or that you as a consumer can possess it everywhere.

Which brings me to the most risky part of THC for the seller

As long as it is maintained properly, THC stays compliant. However, as I stated before, when it’s heated, it starts to convert. That doesn’t mean you have to light it sometimes just exposure to sun and high temperatures will cause the reaction and cause it to start to convert.

So what does that mean if you’re a retailer and you’ve got a bunch of THC flower sitting around in the sun in your store, it will start to convert. And so what was a legal product when you bought it from your distributor or may become an illegal product and you won’t have any idea of knowing when that happens just by looking at it.

It’s not like it’s got a gauge on it for the THC. Same thing for a consumer. A consumer can go into a store and buy what is a legal product that they are told is a legal product. And if they take it and they put it in their car or they leave it out in the sun, in their house, in a sunny spot on a table, it will convert.

And if they then get, let’s say, pulled over for an expired registration and it you know, if it looks like a duck and quacks like a duck, it might be a duck. Hemp, especially hemp flower looks and smells just like regulated cannabis or as we like to call it, pot. And an officer is going to ask you if you’ve got weed and if you tell them, No, I’ve got this flower and I bought it legally and they don’t believe you and they take it anyway and they test it and it comes back above the limit.

You’ve now committed a misdemeanor, potentially a felony crime, depending on how much you got it on you. And you didn’t even know it because you didn’t know it had converted. That’s the risk of THC. But is it legal as of right now? Yeah, it’s legal. As long as it falls within that point, 0.3% Delta nine limitation and your state has the same limitation.

If you’re in a total THC state may not be the case. So you need to make sure you know where you are and what the legalities are of your location, not just the federal limitation.

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