Currently, the hemp market is seeing a significant rise in products containing Tetrahydrocannabinolic acid (“THCA”), a situation that's sparking legal debates and confusion at both federal and state levels. The situation is well summarized by Berks County (Reading) District Attorney John Adams: “The law [surrounding hemp] is so confusing… I wouldn’t touch that with a 10-foot pole.” Today, rather than avoiding the confusion, I aim to tackle the intricacies of hemp laws directly.

THCA is a cannabinoid found in the flowers of the cannabis sativa plant, which includes both cannabis and hemp. It is abundant in fresh plants -- particularly in raw cannabis buds -- compared to dried plants. It is acid contained within a hemp plant. When heated, THCA converts into THC, which causes psychoactive effects.

The legal framework surrounding this cannabinoid is murky. Even the Drug Enforcement Administration (“DEA”) has had difficulties clearly articulating the laws concerning THCA. Addressing this, the DEA has written that Congress requires the definition of hemp to focus only on the delta-9 THC concentration after a process called decarboxylation, which converts THCA into THC. The DEA states: “In regards to THCA, Congress has directed that, when determining whether a substance constitutes hemp, the delta-9 THC concentration is to be tested ‘using post-decarboxylation or other similarly reliable methods.’” This means that cannabis-derived THCA does not qualify as hemp under the Controlled Substances Act when tested this way, as it mirrors the properties of delta-9 THC.

However, it’s critical to note that the DEA’s interpretation is specifically constrained to laws on hemp production and, in my opinion, does not extend to post-production hemp products. The Farm Bill explicitly mentions "delta-9 THC" only in the context of the final product. The cited statutes—7 USC § 1639p(a)(2)(A)(ii) and 7 USC § 1639q(a)(2)(B)—are relevant exclusively to hemp production and the pre-harvest stage. Once a hemp crop passes this pre-harvest test and is harvested, the legal concern shifts solely to the delta-9 THC levels, with no further mention of its decarboxylated state. Thus, using post-decarboxylation testing methods on harvested hemp that degrade these acids, such as THCA, would make the statutory term “acid” meaningless if interpreted to require post-decarboxylation and contrary to the law’s plain meaning.

Both Pennsylvania and New Jersey recognize the federal definition of hemp, which includes the "acids" of the plant. New Jersey adheres strictly to federal law, whereas Pennsylvania's statute specifies that “any part” of the hemp plant is legal, implicitly covering these acids.

Recent THCA-related incidents, such as the November 2023 raid on The Bee Hippy Hemp Dispensary in Texas for selling THCA hemp flower, underscore the persistent confusion in the industry. Similarly, the legal challenges related to delta-8 THC across Pennsylvania in 2023, including raids and subsequent litigation like the one by the Lancaster County District Attorney on Smooth Vape, highlight the difficulties law enforcement and businesses face due to the unclear and evolving hemp regulations.

This complex legal landscape emphasizes the need for businesses, legal professionals, and policymakers to thoroughly understand these nuanced legal interpretations. As THCA products gain popularity, the ongoing legal issues could significantly impact both the hemp industry and the broader legal framework governing cannabis.