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The DEA Got It Wrong: Unveiling the Misinterpretation of THC Testing Laws

At, we strive to keep our community informed about the latest developments in cannabis legislation. Recently, a significant update has emerged regarding the legal status of tetrahydrocannabinolic acid (THCA), also known as the active ingredient in medical cannabis sold in Illinois, Michigan, Colorado, California, New York, and other states. This update has created waves within the cannabis industry. This blog post will break down the current situation, highlighting the DEA's stance and its implications for our products and customers.

The Recent Controversy

On May 13, 2024, a letter from the DEA’s Chief of its Drug and Chemical Evaluation Section, Dr. Terrence Boos, was sent to attorney Shane Pennington, addressing the legal status of THCA. The DEA's position is that THCA does not meet the definition of legal hemp under the Controlled Substances Act (CSA) because, during the decarboxylation process, THCA converts to delta-9 THC, which must be accounted for in determining legality.

Dr. Boos 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.’ The ‘decarboxylation’ process converts delta-9 THCA to delta 9 THC. Thus, for the purposes of enforcing the hemp definition, the delta-9 THC level must account for any delta-9-THCA in a substance. Accordingly, cannabis derived THCA does not meet the definition of hemp under the CSA because upon conversion for identification purposes as required by Congress, it is equivalent to delta-9 THC.”

This is not a new stance from the DEA. A similar position was stated in a letter from June 2023, and it appears we are experiencing a recurring debate on this matter.

The Core of the Dispute

In short, the DEA is correct with respect to pre-harvest hemp testing, which requires a post-decarboxylation (i.e., total THC) test, but the DEA is incorrect with respect to harvested cannabis material. This is because the two statutes it cites in support of its position are the only two places in the Farm Bill that discuss “post-decarboxylation.” They are both in the context of hemp “production,” which is defined as cultivating hemp. Once the mandatory pre-harvest testing is completed, a hemp crop may be harvested if it passes the test. Thereafter, the statute solely refers to “delta-9 THC,” not “THC” or “post-decarboxylated delta-9 THC” or anything else. The statute just says “delta-9 THC.” In fact, the DEA has said as much on many prior occasions.

Legal Interpretation of Hemp and Acids

Another critical aspect is the legal definition of "hemp," which includes its acidic forms. All cannabinoids in their acidic forms, like THCA, contain a carboxylic acid group that degrades when subjected to post-decarboxylation testing methods. This process renders the term "acid" superfluous if applied to harvested hemp. Legal interpretations suggest that statutes should not render any part of their provisions insignificant. Thus, requiring post-decarboxylation testing for harvested hemp contradicts the plain language of the Farm Bill.

The Loophole and Its Implications

THCA is essentially cannabis, but a loophole in the 2018 Farm Bill allows its sale. This loophole hinges on the distinction between THCA and delta-9 THC levels in pre-harvest testing. Because the bill only mandates post-decarboxylation testing for hemp production and not for harvested material, products with high THCA levels can be legally sold as hemp, provided their delta-9 THC remains below the legal threshold.

However, the legality of hemp-derived THC products, including THCA, is under threat. A proposed amendment to the 2024 Farm Bill seeks to ban these products, further complicating the landscape. The U.S. House Committee on Agriculture recently released a 942-page draft of the 2024 Farm Bill, also called the Farm, Food, and National Security Act of 2024, on May 17. Currently, the bill is projected to cost $1.5 trillion over a 10-year period. During a Farm Bill hearing on May 23, the committee passed a group of amendments en bloc, one of which would essentially prohibit all hemp-derived products.

In its current form, the amendment would implement a ban on “all ingestible hemp products with any level of THC.” It would also redefine hemp to “only include naturally occurring, naturally derived, and non-intoxicating cannabinoids,” and remove cannabinoids “synthesized or manufactured outside of the plant” from the definition of legal hemp.

The amendment was proposed by Illinois Rep. Mary Miller. “My amendment will close the loophole created in the 2018 Farm Bill that allows intoxicating hemp products like delta-8 to be sold,” Miller said on May 23. “These products are being marketed to children and sending hundreds of them to the hospital. We must stop teenagers and young children from being exposed to addictive and harmful drugs.”

While Miller’s amendment claims to protect children, this claim lacks substantial evidence. The assertion that hemp products like delta-8 are sending hundreds of children to the hospital is not backed by concrete data. The amendment appears to be based on anecdotal reports rather than systematic research or statistical analysis. This lack of support raises concerns about the validity and necessity of the proposed changes.

Some representatives expressed support for Miller’s amendment, but requested more information. Tennessee Rep. John Rose explained that more clarification is necessary to separate the “intentional and unintentional products” in the 2018 hemp definition. Virginia Rep. Abigail Spanberger added that she only seeks to make changes that would benefit farmers in her state. “Greater clarity is incredibly important, and particularly for fiber hemp producers, this amendment would make clear the valuable work that they do and make clear the viability of their product,” Spanberger added.

However, many more legislators opposed the amendment, such as Indiana Rep. Jim Baird. He argued that since the 2018 Farm Bill was passed, many farmers have invested everything they had into farm businesses. “American farmers deserve the certainty afforded with the current definition of hemp. The proposed amendment arbitrarily changes the current congressionally written definition of hemp,” Baird said.

Rep. Derrick Van Orden also opposed the amendment, emphasizing that many Americans have embraced their hemp businesses as their livelihood in order to care for their families. “American farmers deserve the certainty afforded with the current definition of hemp,” said Van Orden. “The proposed amendment arbitrarily changes the current congressionally written definition of hemp.”

Indiana Rep. Zach Nunn echoed this opinion, stating that he wants to work with his colleagues to protect kids from drugs, but the amendment “goes too far” by banning hemp grain and fiber industries.

Many hemp organizations such as the independent nonprofit U.S. Hemp Roundtable immediately released statements regarding the news. “We had been assured on several occasions by committee staff and the Chairman personally that they would not support any effort to kill the hemp industry,” the organization wrote about the en bloc amendment passage. “But unfortunately, the decision was made by the Chairman to use a procedural tactic to avoid a separate vote on the issue. And that resulted in the passage of a deeply flawed and deeply objectionable policy.”

The Farm Bill and its amendments have been sent to the House floor for discussion, but the U.S. Hemp remains confident that it won’t pass. “Even if the House should pass the Farm Bill, the differences between House Republicans and Senate Democrats are considerable at this point,” the organization continued. “And even if the major issues dividing the parties are resolved, we continue to have many friends in both branches on both sides of the aisle who will work with us to defeat this hemp-killing language.”

Indigenous Cannabis Industry Association founder Rob Pero (also called Bad River) also published a statement expressing concern, especially for the unknown effects such an amendment would have on CBD products. “This would not only impact potentially impairing products like Delta-8 but would also extend to non-intoxicating CBD products with any quantifiable amount of THC” Pero stated. “Such a broad prohibition would effectively eliminate 90-95% of the hemp products market, jeopardizing the livelihoods of countless farmers, entrepreneurs, and Indigenous communities relying on the hemp industry for economic sustainability.”

The National Cannabis Industry Association (NCIA) expressed its recommendations on how to best regulate intoxicating hemp products, as according to its paper, “Navigating the Future of Cannabinoid Regulation.” This includes regulating intoxicating THC hemp products in the same manner as cannabis or alcohol, increasing the THC percentage allowance in hemp products to 1% (up from 0.3%), and creating “reasonable” THC content limits per serving. “Congress has the opportunity to protect public health and support small businesses by enacting sensible regulations for cannabinoid products,” said NCIA CEO Aaron Smith.

Industry Impact and Our Commitment

Curaleaf Holdings, Inc, a leading international provider of consumer cannabis products, today reacted to the House Committee on Agriculture's approval of an amendment to the 2018 Farm Bill. As the largest operator in the cannabis sector and as a company that recently announced its entry into the hemp-derived THC products space, Curaleaf issued a statement to clarify its position regarding yesterday's Miller amendment.

"We disagree with yesterday's amendment filed by Mary Miller (R-IL), which is an attempt to roll back the Farm Bill," shared Executive Chairman Boris Jordan. "We support hemp farmers, and we believe that hemp-derived products made within the guidelines of the Farm Bill should be available to adults with strict age gating and safety standards. We believe there should be one regulatory framework for all cannabinoids, and that all legal players in the hemp-derived product market must adhere to the same safety and age restrictive standards in order to combat the dangers of the illicit market – just as in cannabis."

Additionally, it is worth noting that some backers of Miller's amendment include marijuana companies in Illinois that are threatened by the fair competition from the hemp industry. The controversy surrounding THCA is significant because it affects a wide range of products and businesses in the cannabis market. As THCA gains prominence, the industry faces increased scrutiny and debate. Many legal experts argue that the DEA's current interpretation is flawed. They believe that, as with CBD in the past, a broader understanding and acceptance of THCA's legal status will eventually prevail.

At, our primary goal is to reduce misunderstandings about THCA and provide clarity to our customers and regulators. We dedicate significant time to advising clients and educating regulatory bodies about THCA, just as we did during the early days of CBD's legal journey.

We remain committed to complying with all applicable laws and ensuring our products meet the highest standards of quality and legality.

THCannabis Marketing Team


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