While I love a good loophole, the answer is flat out no. Get popped on the streets with a gram, or the feds bust down the doors of your CBD shop - you simply can't argue THCa is hemp.
Here is a rundown on everyone's favorite cannabinoid.
What is THCa flower?
High THCa flower is the same best-selling product seen on the shelves at dispensaries in legal cannabis states. All THC dominant type I cannabis is high THCa. Consumers, while eager to imbibe, have been slow to catch on. Internet message boards are ablaze with praise for this "new" cannabinoid. Retailers continue to feed the fire with billboards and blogs advertising the similar but federally legal sibling to traditional THC. Lawmakers have turned a blind eye and private and public postal workers continue to pack thousands of pounds across state lines completely uninterrupted by the police.
The cat is out of the bag and high THC cannabis is now easier accessed in non-legal states than those with adult use programs. No purchasing or potency limits, crippling taxes, seed to sale tracking, heck the vast majority doesn't even undergo pesticide testing. Selling THCa hemp where THC is strictly prohibited couldn't be easier. And the reality is, the THC flower in a California Cookies dispensary contain the same cannabinoids as the THCa flower peddled as hemp at a CBD shop in North Carolina.
How did weed become legal where it's not legal?
In 2018 the US Farm Bill legalized hemp cultivation for farmers - and hemp sales for retailers. Stipulations were that the flower must contain below 0.3% Delta 9 THC to reach the public as legal hemp. Many are quick to point out that Delta 9 THC is actually the compound the gets consumers high and THCa flower doesn't have it.
The irony lies in that cannabis plants do not naturally produce Delta 9 THC. Cannabis plants only naturally produce the acid forms of cannabinoids, i.e. THCa, CBDa, THCVa, CBGa, CBDVa etc. We may discover a few exceptions in the future - but for now it's generally understood among scientists. Plant physiology simply does not produce D9.
Then where does Delta 9 come from?
Intoxicating Delta 9 THC is converted from THCa through the chemical process commonly known as decarboxylation. The main catalyst for this conversion is heat. Light up a joint or fire up a bowl and the flame changes the THCa in an instant to a cloud of Delta 9. Craft up some canna-butter over the hot stove and decarboxylation strikes again. Small amounts of Delta 9 are also converted during drying, trimming, handling, aging, and exposure to UV light, but the percentage is small.
What makes THCa legal?
A simple test result that shows the flower at one point had less than 0.3% Delta 9 is all that shops and online retailers use to prove the legality of their products. For producers, the easy route is rush a fresh flower off to a lab for analysis - or if the lab is playing the game they have been known to doctor numbers in the name of commerce. Keep a flower out of the light, keep it cool, and treat it nicely and it will be theoretically speaking - retail ready - without issue. But not so fast....
What makes THCa illegal?
The 2018 Farm Bill, and the DEA, explicitly state in order for products to be considered hemp they must contain less than 0.3% Delta 9 post-decarboxylation. This means the D9 content of the product once its heated must be below 0.3%.
In dispensary talk, this is called total THC. It is calculated by multiplying THCa content * 0.877 and then adding it to the Delta 9 percentage. It sounds confusing, but the labs do the math. All cannabis products in legal state dispensaries provide the total THC percentages on every product. For example, the test results in the image above show a flower with 20.954% THCa, 0.184% Delta 9 - and 18.56% total THC. What might look like federally legal hemp is far from it decarboxylated.
In most cannabis legal states products with over 0.3% total THC are already banned - which is why you can't buy THCa "hemp" in Oregon, but you can get it from a dispensary.
The other prohibitive factor in legal THCa flower is actually growing it. In order to be legally considered hemp, all licensed crops must be sampled 30 days before harvest and tested for total THC and not just Delta 9. At 30 days before peak maturity the average THC variety has at least 3% total THC, 10x's the 0.3% that is federally allowed.
So who's growing it?
The vast majority of THCa flower is grown in unlicensed facilities where plants are never inspected pre or post harvest. There are a few bold folks with hemp licenses doing the dirty but the smart ones just completely stay off the radar. This also means there is zero checks and balances on what gets fed to or sprayed onto plants. And remember it only takes one COA to get into a shop and a grower can re-use the same test results for as many pounds or varieties as they can get away with. No one seems to be looking, and it's the wild wild west. Who knows how long it will last.
A final note
While it would seem a quick rule change will happen, there is one other snafu. High CBD plants also produce more than 0.3% total THC in dried and trimmed flower - in fact most hit almost 1%. Technically speaking there is virtually no compliant CBD flower. While the chances of the cops throwing you in jail for a gram of flower are pretty slim, it is worth noting that the federal laws are a mess and something has to change.
