Tetrahydrocannabinolic acid (“THCA”) is a non-psychoactive cannabinoid that is found in all raw cannabis plants. THCA is the acid precursor to tetrahydrocannabinol (“THC”), the psychoactive component of cannabis, and is converted to THC through decarboxylation (heating).
Historically, consumers use THCA, often raw in cannabis juice/smoothies, for health benefits, including as an anti-nausea, anti-inflammatory and anti-seizure supplement.
However, the federal definition of “hemp” was changed with the passage of the 2018 Farm Bill, and hemp began to derive its legality from a .3% or less concentration of delta-9 THC.
Understandably, this definition left unaddressed a loophole of other THC isomers, including delta-8 THC, delta-10 THC and THCA. These “legal hemp” products containing delta-8 THC and delta-10 THC have created a market filled with consumable products that are extremely potent, often chemically synthesized intoxicants, sometimes stronger than what is available to adults in legal, licensed marijuana dispensaries.
Cannabis Industry advocates and members of the public have advocated that the State Legislatures address the slew of delta-8, and delta-10 THC consumable products. However, THCA (bulk) flower had largely flown under the radar of the legislature’s goal to roll back hemp due to its inclusion in the definition of hemp.
THCA Bulk Hemp Flower is Not Legal For Sale Within the State of California, but with Proper Permits May be Exported to Other States
As far as bulk flower our office has recently received two classifications from the California Department of Public Health (“CDPH”) which lead to the legal conclusion that THCA Bulk Hemp Flower is not legal for sale within the state of California, but can be sold outside the state with the proper permits.
For context, the CDPH clearly states on their FAQ website:
“The regulations require that industrial hemp food, food additives, beverages, and dietary supplements intended for human consumption have no detectable total THC. The regulations also create a minimum age of 21, to purchase hemp final form food products intended for human consumption and limit the number of servings in hemp products to five per package. The regulations also include additional cannabinoids in the definition of THC.”
Specifically, Section 23010(a) (List of Intoxicating Cannabinoids) was revised to include the addition of delta-8 tetrahydrocannabinol (THC), delta-9 tetrahydrocannabinol (THC), delta-10 tetrahydrocannabinol (THC), and tetrahydrocannabinolic acid (THCA) in the definition of “THC” or “THC or comparable cannabinoid”. Additionally, the Emergency Regulations issued in September 2024 made it explicitly clear that synthetic tetrahydrocannabinol (THC) was banned in hemp products.
To be clear, even the warehousing of products with any detectable amount of THC within the state is strictly prohibited. As Section 23100(d) (Serving and Package Requirements) was added to state:
“A person shall not manufacture, warehouse, distribute, offer, advertise, market, or sell industrial hemp final form food products intended for human consumption including food, food additives, beverages, and dietary supplements that are above the limit of detection for total THC per serving.”
Given the above regulatory landscape, our inquiry about the relevant permits needed to warehouse and sell bulk THCA hemp flower received two different responses.
First, on March 6, the agency espoused that:
“Flower falls under the food category and delta-9 THC is not allowed because it is an isolate.”
This emailed statement alludes to the passage of the Emergency Regulations in September 2024, which prohibited synthetic isolates. According to the CDPH classification of bulk hemp flower as “food”, all THCA hemp flower would currently be prohibited for sale or warehousing within the state.
Then, on March 18th, through further research and communication with the CDPH, the agency took a different stance, one that espouses that “The regulatory structure for products depends, in part, on both the nature of the product and the intended use.”
Generally, unprocessed hemp flower is regulated by the CDFA as an agricultural commodity. However, if the hemp is processed and the intended use of the ingredient is an ingredient in a commodity that the CDPH regulates (i.e. hemp flowers for use as an inhalable), then an appropriate IHEO permit would be required.
Increased Enforcement of Unregistered/Illegal Hemp Products Have Begun
Recently, CDPH issued a public statement on their website of “Authorized Industrial Hemp Firms”. This list facilitates enforcement of the IHEO registrations required, and serves as a starting point for law enforcement. By obtaining the applicable IHEO authorizations, an entity could maintain limited operations in California and be added to the list of registered businesses. This public registration could protect an entity from search/seizure issues and would certainly provide a defense to current operations.
The standard for hemp products in CA is no longer the federal standard of less than .3% delta-9 THC – it is currently 0% THC, unless these products are distributed through the legal cannabis industry. Accordingly, if you are selling hemp products that contain ANY THC in California you can face an CDPH/DCC investigation to determine compliance with AB 45 or other laws. If an operator is not compliant, enforcement may include:
- Regulatory Warnings.
- Public Health Advisories Warnings.
- Civil Penalties.
- Recall of IH Final Form Products or Extracts.
- Seizure and Embargo of IH Products.
- Seizure of Personal and Corporate Property/Bank Accounts.
- Criminal Penalties.
Differing Status of THCA Flower in Michigan and Tennessee
Some states have changed their regulatory definitions so that THC is defined to include THCA. Others have recently proposed laboratory testing of hemp products to ensure the concentration of delta-9 THC is below the federally legal threshold of .3%.
Michigan – THCA is included in the Definition of Total THC
For example, the state of Michigan’s definition of THC includes THCA, and cannabis is defined as any product that has a THC concentration of .3% or more, including THCA. Thus, any product with a concentration of THC (including THCA) greater than .3% is considered marijuana and can only be sold by legal operators who are licensed by the MI Cannabis Regulatory Agency (“CRA”).
Tennessee
The future of hemp products in Tennessee are currently in limbo, as a legal challenge to the state rules awaits trial in June. The TN Dept. of Agriculture’s new rules were meant to go into effect back in December 2024 and would require the testing of all hemp products for delta-9 THC.
Currently, cannabis with a concentration of less than .3% delta-9 THC is considered legal hemp in Tennessee, however, cannabis with a concentration of greater than .3% delta-9 THC is considered marijuana and remains illegal in the “Volunteer State.”
As described, hemp flowers also contain THCA, a nonintoxicating acid that has not yet been outlawed in Tennessee. When heated or smoked, however, the THCA in the plant converts into delta-9 THC – an illegal substance in Tennessee when it is present in greater than trace amounts. The new rules would require testing for the delta-9 THC produced when THCA is heated.
Do You Have Questions About THCA?
Navigating the complex and ever-changing legal landscape of THCA, hemp-derived products, and cannabis regulations requires expert legal guidance. Whether you are a wholesaler, manufacturer, distributor, or entrepreneur looking to enter the California hemp market, compliance is critical to protecting your business from enforcement actions, financial penalties, and potential criminal liability.
At Manzuri Law, our experienced cannabis and hemp attorneys specialize in regulatory compliance, business licensing, and litigation defense. We provide tailored legal strategies to help businesses understand and adhere to California’s Industrial Hemp Enrollment and Oversight (IHEO) requirements, stay compliant with CDPH regulations, and avoid costly legal pitfalls.
With a deep understanding of California’s evolving cannabis and hemp laws—and insight into shifting regulations in states like Michigan and Tennessee—our legal team is equipped to guide your business through every stage of regulatory compliance, risk mitigation, and enforcement defense.
Contact Manzuri Law today to schedule a consultation with our knowledgeable legal team. We are here to help you navigate the legal complexities of the hemp and cannabis industries and ensure your business operates within the bounds of state and federal laws.