Rod Kight is an international cannabis lawyer. He represents businesses throughout the cannabis industry. Additionally, Rod speaks at cannabis conferences, drafts and presents legislation to foreign governments, is regularly quoted on hemp matters in the media, and is the editor of the Kight on Cannabis legal blog, which discusses legal issues affecting the hemp industry. You can contact him by clicking here.
The US Drug Enforcement Administration (DEA) issued a letter on June 9, 2023 in response to a request about information regarding, among other things, tetrahydrocannabinolic acid (THCa). A copy of the letter is below. Note that I was only able to locate a copy of the letter on Reddit. I had to compile a series of PNG images of it into a single document. I believe, but cannot confirm, that the letter is in response to an inquiry by Vice Media Group.
In the letter, the DEA states the following about THCa:
“In regards to delta-9-THCA, Congress has directed that, when determining whether a substance constitutes hemp, delta-9 THC concentration is to be tested “using post-decarboxylation or other similarly reliable methods.” 7 USC § 1639p(a)(2)(A)(ii); 7 USC § 1639q(a)(2)(B). The “decarboxylation” process converts delta-9 THCA to delta09 THC. Thus, for the purposes of enforcing the hemp definition, the delta-9 THC level must account for any delta-9-THCA in a substance…. Accordingly, cannabis derived delta-9 THCA does not meet the definition of hemp under the CSA because upon conversion for identification purposes as required by Congress, it is equivalent to delta-9 THC.“
Is the DEA right?
The answer is “it depends”. If the DEA is addressing the legal status of hemp that is in production (ie, pre-harvest hemp), then it is correct. As I have previously discussed, all hemp must pass a “post decarboxylation” test, commonly known as a “total THC”, test in order for it to be harvested. However, for hemp that is post-production, ie, hemp that has passed a post-decarboxylation test and been harvested, the sole legal metric for determining its legal status is its delta-9 THC levels. In other words, if we read the DEA’s letter to contend that post-production hemp is subject to a post-decarboxylation test then it is wrong.
The post-decarboxylation test does not apply to post-production hemp. The two statutes cited by the DEA in its letter are the only two places in the Agriculture Improvement Act of 2018, commonly known as the 2018 Farm Bill, that the term “post decarboxylation” appears. They both apply solely to hemp production.
In the first statutory provision, 7 USC § 1639p(a)(2)(A)(ii), Congress sets forth the criteria that states and Indian tribes must comply with in order to “have primary regulatory authority over the production of hemp” within their jurisdictions. The second statutory provision, 7 USC § 1639q(a)(2)(B), is similar in that it sets forth the criteria that the USDA shall use to “monitor and regulate [hemp] production” in states that do not have an approved hemp plan and thus do not have primary authority over hemp production within their jurisdictions. (Note- you can read state and tribal hemp plans on the USDA’s website by clicking here.)
The key word in the above provisions is “production”. In law, we refer to a word with a specific and defined legal meaning as a “term of art”. In the context of hemp, “production” is a legal term of art. Under 7 CFR § 990.1, to “produce” means: “To grow hemp plants for market, or for cultivation for market, in the United States.” Additionally, 7 CFR § 718.2 defines a “producer” as “an owner, operator, landlord, tenant, or sharecropper, who shares in the risk of producing a crop and who is entitled to share in the crop available for marketing from the farm, or would have shared had the crop been produced. A producer includes a grower of hybrid seed.” To produce hemp means to grow it.
Since the post-decarboxylation test clearly applies to producers, the DEA is correct when it states that “for the purposes of enforcing the hemp definition, the delta-9 THC level must account for any delta-9-THCA.” A hemp producer’s crop must not have total THC concentrations exceeding 0.3% by dry weight in order to harvest it. However, once that crop passes the test and is harvested, no additional test is required under federal law. At that point, meaning post-harvest, the sole statutory metric under federal law for determining whether harvested cannabis material is lawful hemp or illegal marijuana is its delta-9 THC levels. In fact, the DEA stated this very clearly in a letter dated January 6, 2022: “[T]issue culture or any other genetic material that is derived or extracted from the cannabis plant such as tissue culture and any other genetic material that has a D9-THC concentration of not more than 0.3% on a dry weight basis meets the definition of “hemp” and thus is not controlled under the CSA.” This was not the first time the DEA said that D9 was the sole factor. During a video webinar called a “Town Hall with USDA and DEA” conducted by the Florida Department of Agriculture and Consumer Services on June 24, 2021, the DEA representative stated: “I’ll be very, very deliberate and clear. At this time, I repeat again, at this time, per the Farm Bill, the only thing that is a controlled substance is delta-9 THC greater than 0.3% on a dry-weight basis.“
The Ninth Circuit Court of Appeals has also weighed in on this issue, stating: “[T]he only statutory metric for distinguishing controlled marijuana from legal hemp is the delta-9 THC concentration level.” AK Futures LLC v. Boyd St. Distro, LLC, 35 F.4th 682 (9th Cir. 2022)
So, the DEA is right that Congress requires a post-decarboxylation test for hemp production. But, once hemp has been deemed to be compliant and allowed to be harvested, the “post decarboxylation” test no longer applies. You may reasonably ask how a crop that passed a total THC compliance test could be harvested and have flowers with no more than 0.3% delta-9 THC but with high concentrations of THCa. I discuss that in a companion article to this one that you can read by clicking here.
In summary, this DEA pronouncement is bound to create more confusion in an already confusing area of law; however, it should properly be read as simply restating the fact that hemp producers must comply with the total THC test in order to harvest their hemp. Post-harvest (ie post-production), the 2018 Farm Bill’s definition of hemp clearly states that the delta-9 THC levels are what matters, not the levels of THCa.
Finally, I should note that the DEA also addressed other cannabinoids in its letter, including hexahydrocannabinol (HHC), which it finds to be an illegal synthetic form of THC that does not naturally occur in the cannabis plant. There is contrary evidence to this position, namely that HHC is naturally produced in cannabis seeds (see here and here), but that issue is for a future discussion.
Here is the letter:
IMPORTANT NOTE: This article is not intended to be legal advice and should not be used as such. The matters discussed are novel and involve complicated and unsettled legal issues. Before making any decisions regarding THCa you should first consult with an experienced attorney.
Please contact us if you have any questions about THCa Hemp Flower or other hemp-related legal issues.
