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.