To meet the federal definition of hemp under the 2018 Farm Bill, a cannabis product must contain less than 0.3 percent delta-9 THC. Now, in a new letter clarifying that limit, a top Drug Enforcement Administration (DEA) official says the threshold includes not only delta-9 THC itself but also the related cannabinoid THCA, which is converted into delta-9 THC when heated—a process known as decarboxylation.
“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,’” says the letter, sent earlier this month by Terrence Boos, chief of DEA’s drug and chemical evaluation section.
“The ‘decarboxylation’ process converts delta-9-THCA to delta-9-THC,” Boos continued. “Thus, for the purposes of enforcing the hemp definition, the delta-9 THC level must account for any delta-9 THCA.”
“Accordingly, cannabis-derived THCA does not meet the definition of hemp under the CSA,” he concluded, “because upon conversion for identification purposes as required by Congress, it is equivalent to delta-9-THC”
The position articulated in the May 13 letter comes in response to a request for clarification sent to DEA last month by cannabis attorney Shane Pennington, who declined to comment for this story. According to the DEA letter, Pennington last month “requested the control status of tetrahydrocannabinolic acid (THCA) under the Controlled Substances Act.”
A similar request from Pennington, a lawyer at the firm Porter Wright, was also the impetus for DEA’s declaration in 2022 that marijuana seeds are considered legal hemp as long as they don’t exceed federal THC limits.
DEA’s position on THCA comes as federal lawmakers reconsider how to address hemp and cannabinoids under a revised version of the Farm Bill, with a key House committee having recently adopted an amendment that would generally ban hemp-derived cannabinoids such as delta-8 THC.
DEA is essentially saying in the letter that because THCA so readily converts into delta-9 THC, it can’t be ignored when measuring a product’s delta-9 THC level.
That’s not at all how the U.S. hemp industry sees it, however.
“This interpretation would destroy the hemp industry,” Jonathan Miller, general counsel for the U.S. Hemp Roundtable, told Marijuana Moment on Friday. “Most hemp growers, even fiber and grain growers, would be out of compliance.”
Asked if he thought hemp farmers would object to the idea that a product that tests at 0.2 percent delta-9 THC but also 4.6 percent THCA, Miller replied: “I would imagine nearly every hemp farmer and company would find this interpretation objectionable.”
Shawn Hauser, who co-chairs cannabis-focused law firm Vicente LLP’s hemp and cannabinoids practice, said the Farm Bill “requires biomass to be tested pre-harvest for total THC, which considers the percentage of THCA in pre-harvest material.”
Hemp products are required to have a pre-harvest certificate of analysis showing the products are compliant, she said.
“So pre-harvest, a plant with high THCA likely exceeds the maximum allowable THC content and wouldn’t be lawful,” Hauser said. “This has been a point of confusion among businesses and state regulators.”
The situation—including ongoing discussions of how to amend the Farm Bill’s handling of cannabinoids—”just underscores the imminent need for legalization and regulation of the whole plant,” she added. “Trying to draw arbitrary lines in the plant and the law without a federal regulatory or enforcement framework doesn’t work.”
Hellbound and Down 