Why It’s Legal

Is THCA Flower Legal?

THCA has always been a well-known component of cannabis, but it’s only recently that products specifically containing this precursor cannabinoid have started appearing online. With this recent focus on THCA, it’s worth re-examining the legal status of this uniquely positioned compound, something federal agencies have also started doing as the online hemp flower industry has expanded to include yet another cannabinoid.

Are hemp flower products containing high concentrations of THCA legal? In this guide, we’ve compiled all the evidence on the subject so you can draw your own conclusions.

What is high-THCA flower?

High-THCA flower is cannabis flower that has been bred and prepared to contain high concentrations of THCA but low concentrations of delta 9 THC. This makes THCA flower very similar to THC flower — until smoked or otherwise decarboxylated, conventional THC flower also contains mostly THCA with just a small amount of detectable THC.

The key difference with THCA flower, though, is that THC levels have been specifically kept below 0.3%. Since THCA naturally converts into THC as it oxidizes, this also often means that THCA flower must be handled with greater care than conventional THC buds.

How is THCA flower different from marijuana?

The primary difference between THCA flower and marijuana is the THC content. It doesn’t matter that THCA has the capacity to turn into THC — as long as the tested amount of THC in a cannabis flower product is below 0.3%, it is considered hemp, not marijuana.

Does THCA turn into delta 9 when you smoke it?

Yes, smoking provides sufficient heat to convert THCA into THC via a process called decarboxylation. As a result, THC flower and THCA flower have essentially the same effects even if they inhabit separate legal categories.

Is THCA federally legal?

Determining the federal legality of THCA requires analyzing cannabis law spanning from the ‘70s to the present. The 2018 Farm Bill played a major part in paving the way to THCA’s current legal status, but the DEA has also recently issued a variety of communications that seemingly confirm the positions that have commonly been taken by hemp and cannabis producers in the past.

Starting with the 1970 Controlled Substances Act and ending with opinions just issued in 2022, let’s take a close look at the legal status of THCA:

— The Controlled Substances Act

First, why would THCA be considered illegal in the first place? In 1970, the Controlled Substances Act (CSA) labeled marijuana a Schedule I drug, imposing serious legal penalties for its cultivation or use. The CSA vaguely listed “tetrahydrocannabinols” as banned substances, a misleading situation that would need to be rectified later down the road.

— The 2018 Farm Bill

The 2018 Farm Bill cemented the gains made by a similar piece of legislation passed in 2014. With the passage of this bill, the federal government was commanded to remove “industrial hemp” from its definition of “marijuana,” essentially limiting the definition of this Schedule I substance to the singular compound delta-9 tetrahydrocannabinol. As is always the case with government bureaucracy, though, it took time for the ramifications of the 2018 Farm Bill to be completely sorted out. Over the next few years, a series of letters and opinions would be released to do just that.

— The DEA’s 2020 IFR

The DEA commonly enacts policy in the form of interim final rules (IFR), one of which it issued in 2020 in response to questions regarding the legality of hemp substances. In this IFR, the DEA unequivocally states that the only criteria for a Cannabis sativa derivative meeting the definition of hemp under the 2018 Farm Bill is containing less than 0.3% delta 9 THC. As long as a THCA product contains less than 0.3% THC at the time of sale, this DEA letter seems to indicate that it is hemp, not marijuana.

— The Alabama Board of Pharmacy Letter

The above-cited IFR wasn’t enough to entirely quell questions regarding the legality of hemp products. Concerned about the rise of hemp products in their state, the Alabama Board of Pharmacy wrote to the DEA in 2021 and elicited a response clarifying that cannabinoids extracted from hemp that contain less than 0.3% THC meet the federal definition of hemp.

— The DEA cannabis seed letter

Early in 2022, the DEA released a lengthy opinion regarding the legality of cannabis seeds. In the course of this regulatory statement, the DEA again confirmed that substances “extracted from the cannabis plant” with a “delta-9-tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis meets the definition of ‘hemp’ and thus are not controlled under the CSA.” While the letter was about cannabis seeds, it applies to THCA just as much.

— The Ninth Circuit opinion

In our republic, the executive branch enforces the legislative branch’s laws while the judicial branch makes sure the laws are just. A 2022 Ninth Circuit Court of Appeals opinion regarding a delta 8 THC trademark dispute noted that the only historical reason for distinguishing marijuana from hemp is delta 9 THC percentage. As long as the THC concentration in a THCA product is less than 0.3%, it should, therefore, be considered hemp.

Is THCA legal in my state?

To our knowledge, no states have taken measures specifically to ban THCA. The exact wording of state hemp and cannabis laws vary, however, so it’s worth learning more about your state’s regulations to err on the side of caution. On most issues, though, states tend to side with the federal government, and when they don’t, it’s usually in a pro-cannabis direction.

Does smoking THCA cause a positive drug test?

Regardless of federal or state opinions on the legal status of THCA, it’s a fact that smoking or vaping this cannabinoid will make you fail a drug test for THC. Even before it reaches your body, THCA will have been converted into THC during the process of incineration, so that’s what the cannabinoid will show up as in lab testing.

You’re in pretty much the same boat with every other alternative type of THC. While their slight chemical differences might be meaningful from a regulatory point of view, THC isomers and metabolites are too similar to each other to appear separately in most forms of lab testing.

The bottom line: Is it legal to smoke THCA?

With a case as strange as THCA, you’re forgiven for still being dubious about legal details. If THCA becomes THC in the natural course of most methods of ingestion, why aren’t the two cannabinoids regulated the same?

We’ve uncovered here just one of the many inconsistencies of US cannabis law. The illegality of THC is holding on by a thread, and it now seems more like the federal government simply doesn’t want to deal with the hassle of cannabis reform than the nation is genuinely opposed to THC any longer.
What matters is that producers no longer feel apprehensive about growing high-THCA hemp, so it’s becoming possible to buy THCA flower online. When it comes to law enforcement scrutiny, THCA flower puts you just as much at risk as you would be with CBD, delta 8, or any other type of hemp flower that looks and smells like weed.