Is THCa Flower Legal in My State? Here’s What You Need to Know
The legal status of THCa flower is a hotly debated topic.
Some states outright ban the sale or production of smokable hemp, making high THCa hemp flower illegal. Other states have conflicting laws that make it challenging to determine whether THCa flower can be lawfully bought.
This leaves plenty of room for interpretation on where THCa flower is legal and where it’s not. This article sheds light on the current regulatory status of THCa hemp flower in the United States, including some insights on how to determine whether this product is lawful in your state.
What is High THCa Flower?
THCa flower is the hottest product on the current hemp market because it’s a hemp bud with the psychoactivity of marijuana.
THCa flower contains high levels of THCa and low levels of delta 9 THC. When heated, the THCa — a biologically inactive cannabinoid that doesn’t get you high — converts into delta 9 THC and gets you really high.
The only difference between THCa flower and marijuana flower is the levels of delta 9 THC, which must be below 0.3% by dry weight for THCa flower to be considered lawful hemp.
Is It Possible to Create High THCa Flower Naturally?
According to farmers, yes.
Farmers test their hemp within 30 days of harvest. The requirements by the USDA are that farmers test for Total THC now. So, how can the plants have high levels of THCa and still test as hemp?
It’s all about hitting the perfect timing.
If farmers test at the earliest time possible, the flowers will have 0.3% delta 9 THC and pass as hemp. That said, the flowers will have time to mature and develop decent THCa levels that can go up to 20% THCa.
The crop is labeled as hemp because of its low THC levels measured pre-harvest. In fact, growers are encouraged to test pre-harvested hemp crops in the first weeks after flowering to reduce the chances of them testing above the THC threshold. Once harvested, hemp crops are not a concern of the Department of Agriculture.
Is THCA Flower Federally Legal?
Technically, THCa flower is legal at the federal level.
While there are some legal risks involved with buying THCa flower in certain states, the simple answer boils down to this:
Under the 2018 Farm Bill, the only difference between hemp and marijuana is the delta 9 THC levels by dry weight. Hemp is considered every Cannabis sativa plant with delta 9 THC levels below 0.3%.
So, under these provisions, any hemp flower with high THCa levels and below 0.3% delta 9 THC levels is considered legal.
The same can be stated about other bills and provisions related to the legality of the cannabis plant and the difference between cannabis buds.
- The Controlled Substances Act of 1970 considers the marijuana plant a Schedule I drug but doesn’t mention anything about THCa.
- The Farm Bill of 2014 removed the hemp plant from the definition of marijuana and allowed its use for research purposes.
- The 2018 Farm Bill reinforced the definition of hemp as different from marijuana because of its delta 9 levels. This means that any derivative or substance from the hemp plant containing less than 0.3% delta 9 THC is considered legal.
- The DEA’s Hemp Rule (Interim Final Rule) of 2020 clarified that hemp and hemp-derived substances are those that don’t exceed 0.3% delta 9 THC concentration by weight. It also explained that hemp tetrahydrocannabinols are exempt from the definition of marijuana.
- In 2022, the DEA released an opinion on the legality of cannabis seeds. In the letter, they state that “marihuana seed” that contains less than 0.3% delta 9 THC by dry weight is not a controlled substance and meets the definition of hemp. This means that regardless of the source (hemp or marijuana) the seed comes from if its THC levels don’t exceed 0.3%, the seed is considered lawful.
Each state has its own pre-harvest hemp testing requirements. Some test for total THC, while others only for delta 9 THC. According to Rod Knight, a renowned cannabis lawyer, the total THC rule applies only to hemp production because the USDA doesn’t regulate hemp that has been harvested.
With that said, a pre-harvested hemp sample that passes the total THC test (THCa + THC) is lawful hemp. The THCa concentration of the harvested material is not subject to USDA’s total THC regulation. For harvested hemp flower as a product, the only metric that counts is the levels of delta 9 THC by dry weight — like with every hemp-derived product on the market.
With that said, if the state requires hemp-derived products to have less than 0.3% total THC, this will include harvested hemp flower and will make THCa flower illegal to sell in that state.
Is THCa Flower Legal in my State?
Things take a turn when it comes to the legality of THCa flower at a state level.
In a nutshell, if the state restricts the total THC levels in post-harvest hemp to below 0.3% by dry weight, THCa flower is likely illegal.
A great example of this is Oregon, which uses a total THC standard for post-harvest hemp. The state’s laws require that hemp products that contain more than 0.3% percent total THC must not be sold to a consumer unless the vendor is a licensed recreational or medical marijuana seller.
Another example is Louisiana. State law in Louisiana prohibits the sale of hemp for inhalation, except for rolling papers. In addition, any consumable hemp product made, sold, and distributed within state lines shall not contain a total THC concentration of more than 1% by dry weight.
Under current Louisiana laws, THCa hemp flower and any consumable hemp product that exceed the total THC threshold is considered unlawful.
States That Banned or Restricted Smokable Hemp Flower
Regardless if THCa is considered legal in your state, several states have banned smokable hemp flower. Here’s a short list of where it’s illegal to buy THCa flower, or you can buy under restrictions.
In 2022, Louisiana Governor Edwards signed a bill into law that bans all smokable hemp products except for rolling papers.
Texas prohibits the processing and manufacturing of smokable hemp within the state. In June 2022, the Texas Supreme Court ruled that smokable hemp can be bought, sold, and possessed in the state but banned its manufacturing within state boundaries.
Smokable hemp flower is banned in Kentucky for consumers. State law doesn’t allow the possession or marketing of any part of the hemp plant (including floral materials) without a license.
Smokable hemp is illegal in Indiana under SEA 516 bill. CBD products are legal in this state, but anyone found possessing smokable hemp will face a criminal penalty. This ban has been overridden by a federal judge, but the battle for smokable hemp products remains in this state.
Smokable hemp flower is banned under Kansas hemp law. Industrial hemp buds and hemp floral material are not allowed to be sold to any individual that doesn’t hold a license.
Hemp is finally legal in Utah, but not all hemp-derived products can be lawfully sold. Under a new law, growing, processing, or possessing smokable hemp is illegal in Utah. The only legal product in this state is CBD oil with less than 0.3% delta 9 THC.
In November 2021, New York banned the sale of pre-rolled hemp cigarettes as part of its smokable hemp ban. But the state allowed the sale of hemp flower as long as it’s not marketed for smoking.
The issue with smokable hemp in California is that in order to sell it, retailers need to implement a taxation framework first. This means that the production of smokable hemp is legal in California, but growers and manufacturers can only sell it out of state lines for now.
Tennessee doesn’t ban the sale of smokable hemp. You can buy hemp flower and hemp vaporizers in this state only if you are 21 years of age and older.
Don’t Carry THCa Flower Around
Admittedly, one of the main issues one needs to consider when purchasing THCa flower is facing potential prosecution by law enforcement. In the eyes of law enforcement, THCa flower might be deemed illegal marijuana flower, considering they test for the decarbed THC levels in the flower.
This is a novel issue in the hemp industry, and law enforcement may not be familiar with the already confusing laws on THCa flower. So, anyone considering buying this product must be careful about carrying THCa flowers around.
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FAQs on THCa Flower Legality
Does THCa show up on a drug test?
Yes, THCa will show up on a drug test. Standard drug tests check for THC metabolites, and when heated through smoking or vaporizing, THCa converts into THC and is metabolized in the body as THC.
Is THCa toxic?
No, THCa is not a toxic cannabinoid. It’s a naturally occurring cannabis compound and the precursor to THC.
What is a good THCa percentage?
It depends on what you’re looking for. Beginners can enjoy hemp flower with 5% to 10% THCa, while seasoned users may like 20% and above.