In a significant development for the hemp/cannabis industry, the Drug Enforcement Administration (DEA) has issued a letter clarifying the status of tetrahydrocannabinolic acid (THCA) under the Controlled Substances Act (CSA) as first reported by Marijuana Moment.
The letter, addressed to attorney Shane Pennington, underscores the inclusion of THCA within the legal thresholds established for delta-9 tetrahydrocannabinol (THC) in hemp products.
This clarification arrives amidst ongoing discussions among federal lawmakers about how to handle hemp and cannabinoids under a revised version of the Farm Bill. The DEA’s stance has far-reaching implications for the industry, affecting everything from cultivation to product formulation and compliance.
DEA’s Clarification of THCA
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 on a dry weight basis. This threshold is crucial for distinguishing legal hemp from marijuana, which remains a controlled substance. However, the status of THCA, a precursor to delta-9 THC, has been somewhat unclear until now.
In April 2024, Shane Pennington sought clarification from the DEA on whether THCA falls within the legal definition of hemp. The DEA’s response sheds light on this issue, which has potentially significant implications for the hemp/cannabis industry.
The DEA’s response, dated May 13, 2024, states unequivocally that THCA does not meet the definition of legal hemp. Terrence Boos, chief of the DEA’s drug and chemical evaluation section, explained that the federal definition of hemp includes a requirement to test the delta-9 THC concentration using post-decarboxylation or other similarly reliable methods. Decarboxylation is a chemical reaction that converts THCA into delta-9 THC when heated.
Boos’ letter stated, “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.”
So, according to this letter response from the DEA, THCA cannot be excluded from the 0.3 percent delta-9 THC limit that defines legal hemp.
Hemp Industry Response
The U.S. hemp industry strongly disagrees with this interpretation. Jonathan Miller, general counsel for the U.S. Hemp Roundtable, told Marijuana Moment on Friday, “This interpretation would destroy the hemp industry. Most hemp growers, including those cultivating fiber and grain, would be out of compliance.”
When asked if hemp farmers would object to a product testing at 0.2 percent delta-9 THC but also containing 4.6 percent THCA, Miller responded, “I would imagine nearly every hemp farmer and company would find this interpretation objectionable.”
Industry stakeholders are concerned that including THCA in THC concentration calculations could inadvertently criminalize the majority of hemp products currently deemed legal. This has triggered alarms about potential widespread non-compliance issues that could affect the entire supply chain, from farmers to manufacturers.
Below is the full letter to Shane Pennington from the DEA via Marijuana Moment.
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