Is THCA Hemp Illegal: Is It Federally Allowed?

Cannabis laws typically required well regulated operations to track and trace all cannabis and its proceeds. Today, raids still happen if these companies go beyond the bounds of their licenses. However, hemp companies face no such strictures and the 2018 Farm Bill is causing confusion about what is permissible under federal law.

THCA hemp’s legal status remains a contentious issue despite the text of the 2018 Farm Bill’s provisions, which leave stakeholders grappling with interpretations of legislative intent. This post is not a legality guide, but instead raises the novel question of law of if the Absurd Result Principle alters the plain meaning of the Farm Bill to align it with the intent of Congress to legalize non-psychoactive hemp.

The 2018 Farm Bill’s Hemp Legalization

The 2018 Farm Bill formally distinguished hemp from marijuana based on delta-9 THC concentration levels, with testing hemp based on total-THC levels.

Crucially, this legislation defined legal hemp as having a delta-9 THC threshold of no more than 0.3 percent on a dry weight basis, removing hemp from the Controlled Substances Act.

Limitations persist, however, as ambiguity regarding post-decarboxylation testing standards continues to provoke legal debate.

Definition of Hemp and Legal THC Limits

Under the 2018 Farm Bill, “hemp” encompasses the Cannabis sativa L. plant and its derivatives, with no more than 0.3% delta-9 THC on a dry weight basis.

This legal threshold excludes intoxicating effects while allowing for industrial use, establishing a clear demarcation from non-hemp cannabis varieties with higher THC levels.

Hemp’s definition seeks to foster agricultural innovation, not intoxication.

A stringent aspect of compliance involves post-decarboxylation or similar methods to ensure the delta-9 THC concentration doesn’t exceed legally permissible limits. This aligns with the intent to distinguish legal hemp from federally illegal cannabis.

Legal Interpretations of THC Content Requirements

Interpretive challenges arise when considering the conversion of THCA to THC upon decarboxylation, which can push THC levels beyond permissible thresholds. Courts must carefully navigate the nuance between raw and converted THC content.

Decarboxylation protocols blur legal definitions, complicating enforcement and compliance. States apply varying standards to THC content measurements.

When interpreting hemp legality, the agricultural intent is crucial, necessitating a focus on actual THC levels, not potential post-harvest transformation. Legal scrutiny increases over products whereby decarboxylation could yield intoxicating THC levels, contradicting the statutory intent.

The question of whether THCA-rich hemp complies with federal law intensifies as conversion methods reveal the potential for substantial THC levels, raising legitimate concerns about the spirit versus the letter of the law’s absurd result of legalizing intoxicating hemp. As judicial rulings have not yet really begun, a balance could be struck between strict textual adherence and overarching policy goals, ensuring that legal definitions of hemp remain faithfully within congressional intent while addressing the complexities of cannabinoid chemistry.

Debunking the Legality of THCa Hemp

The textualist perspective on the 2018 Farm Bill’s definition of hemp, based solely on the delta-9 THC threshold, does not inherently include other cannabinoids with intoxicating potential like THCa. This is particularly evident when considering the law’s mandate for post-decarboxylation testing, which aims to ensure that the statutory threshold for delta-9 THC is not exceeded after natural conversion processes could potentially occur.

Concatenating the language of the law with its broader legislative intent, it becomes clear that THCa, when decarboxylized into psychoactive THC, surpasses the stipulated delta-9 THC concentration, thus breaching the legal definition of hemp. The framing of the law appears to exclude THCa-rich hemp from the realm of federally permissible substances, aligning with congressional motives to distinguish non-intoxicating hemp from its psychoactive counterparts.

The Absurd Results Principle in Legal Theory

Is THCA illegal?The “Absurd Results Principle” operates as a legal failsafe, an interpretative tool to avoid illogical consequences from literal readings of statutes. It is invoked when a statute’s plain text contravenes common sense or legislative intent, leading to outcomes that defy rationality. The principle is rooted in the fundamental presumption that legislatures do not intend absurd results from their enacted laws.

Historically, this principle helped judges reconcile problematic statutes with common sense. Case law in the United States traces the Absurd Results Principle all the way back to England, with the first case being found in 1819 with the case of Sturges v. Crowninsheild.

Jurisprudentially, the principle underscores the judiciary’s role in mediating between the letter and the spirit of the law. While textualism focuses on statutory language, the Absurd Results Principle considers overarching legislative objectives. This duality is critical; it accommodates both the precision of law and the sometimes unwieldy nature of language.

Its seminal case arose in 1868 with US v. Kirby.  Here’s the facts of that case.  A statute prohibited a person from “knowingly or willfully obstructing the passage of the mail, or of any driver or carrier.”  Well it so happened that Kirby was a sheriff with a warrant commanding him to arrest a man wanted for murder, who happened to be a mailman. Unfortunately, Kirby arrested the mailman while he was delivering mail and was charged with violating the law prohibiting the obstruction of mail delivery. The Supreme Court ruled that the statute did not apply to that situation because it was an absurd result to allow a mail carrier to keep delivering the mail, despite being wanted for murder.

Its application, though rare, has profound implications for statutory interpretation. It allows courts to deviate from a statute’s literal text when it leads to implausible scenarios, ensuring laws function as intended. Importantly, the principle isn’t an escape hatch for inconvenient texts but a legitimate construct to rectify clear legislative oversights.

Thus, the Absurd Results Principle ensures that laws are interpreted within the realm of common sense, preserving their integrity and utility. When statutes flirt with the nonsensical, this principle realigns their application with the rational legislative purposes behind them. It is a testament to the dynamic relationship two co-equal branches of government, the legislative and the judicial.

Intention of Congress vs. Statutory Text

The textualist approach adheres strictly to the statute.

When Congress enacted the 2018 Farm Bill, its members had specific intentions. They envisioned a hemp industry free of intoxicating substances, indicative of a clear distinction between hemp and marijuana. Hence, the 0.3% delta-9 THC threshold was established, but the inclusion of post-decarboxylation testing methods serves as evidence of their broader objectives.

Clarity in legislative intent is pivotal for interpretation.

Statutory language may not encapsulate the full scope of legislative intent. Hence, the principle of avoiding absurd results becomes essential, allowing interpretation that reflects Congress’s overarching goals rather than constraining itself to potentially misleading text.

Congress’s intentions guide the interpretation, serving as a compass. By harmonizing the text with seminal objectives, discrepancies are resolved, culminating in a coherent legal landscape that is aligned with the 2023 Farm Bill and the larger, evolving context of hemp regulation.

State Enforcement and THC Regulation

States play an indispensable role in enforcing THC regulations, balancing the tightrope between federal legality and intoxicating potential. By scrutinizing both delta-9 THC and total THC post-harvest, states can discern whether THCA concentrations indeed align with non-intoxicating mandates. Beyond mere compliance, rigorous enforcement serves as a testament to the integrity of both the hemp market and consumer safety.

With burgeoning variants like delta-8 THC, state authorities shoulder the responsibility to navigate uncharted regulatory waters. This vigilance is pivotal, ensuring that state-level statutes and enforcement actions reflect the true spirit of federal directives, and maintain a market that is both innovative and responsible.

Hemp Testing Protocols and Enforcement Differences

Hemp testing protocols vary significantly across jurisdictions, reflecting a patchwork of regulatory approaches. Establishing uniformity is challenging, as each state interprets federal guidelines differently and enforces its own set of rules.

Since THCA can convert to delta-9 THC upon decarboxylation, testing methods must accurately reflect total potential THC content. This requires sophisticated techniques and standardized procedures to ensure compliance and maintain a non-intoxicating hemp market.

Some states mandate rigorous testing protocols, employing post-decarboxylation or similar methods as stipulated by federal guidelines. These practices aim to quantify total THC accurately, leaving little room for interpretive discrepancies or legal gray areas.

However, the enforcement of these testing protocols is inconsistent, with some states showing more leniency than others. This creates an uneven playing field for hemp producers and affects the accessibility of hemp products across state lines.

States with stringent enforcement of testing protocols serve as exemplars, demonstrating a commitment to upholding the legal boundaries set by the Farm Bill. Their practices ensure that only legitimate, non-intoxicating hemp products reach consumers.

Regional Variations in THCa Hemp Legality

The legal status of THCa hemp fluctuates widely across state lines.

  • Alaska: Strict enforcement mirroring federal testing for total THC content.
  • Texas: lots of THCa there as its legislature only meets every 2 years.
  • Ohio: Currently bills working their way through the legislature to ban IHDs.
  • Colorado: Prohibits THCa products despite a robust cannabis industry.
  • Oregon: Employs rigorous post-decarboxylation testing methods.
  • Washington: Enforces total THC standards, limiting THCa market penetration.
  • Maryland: lawsuits have halted THCa restrictions under preliminary injuction.

States like Colorado and Oregon exemplify stringent regulatory adherence.

While federally the focus is on Delta-9 THC, regional laws add complexity to compliance.

Delta-8 THC and Farm Bill Implications

Delta-8 THC, while not expressly mentioned in the 2018 Farm Bill, has emerged as a point of contention in the interpretation of the legislation. The Bill’s omission of specific language regarding Delta-8, coupled with the rule that it’s naturally occurring in negligible quantities, has led to a gray area in the law. Creative entrepreneurs and chemists have capitalized on this loophole, synthesizing Delta-8 from CBD, which is legal under the Bill.

This omission has led to a proliferation of Delta-8 products that, while technically derived from legal hemp, possess psychoactive properties akin to Delta-9 THC, the very cannabinoid the Farm Bill aims to regulate. As a result, we witness a dichotomy: a product that exists in a quasi-legal state under federal law, yet may run afoul of both the spirit of the Bill and various state laws intent on preventing intoxication from hemp derivatives.

USDA Rule on Delta-8 THC Exclusion

The USDA’s final rule on hemp explicitly excluded Delta-8 THC from the definition of total THC concentration.

  • Delta-8 THC occurs at 1000x lower levels naturally compared to Delta-9 THC.
  • The contribution of Delta-8 THC to total THC content was considered negligible by USDA.
  • Delta-8 is more commonly synthesized from CBD in a laboratory setting.
  • The USDA decided not to include Delta-8 THC in total THC requirements.

This exclusion is based on the substance’s minimal natural occurrence in hemp and its negligible impact on overall THC levels.

The USDA’s rationale was that the trace amounts of Delta-8 found in hemp are insignificant for regulatory purposes.

Congress’s Stance on Intoxicating Cannabinoids

Congress, in the 2018 Farm Bill, clearly aimed to draw a line between hemp and marijuana based on delta-9 THC content.

However, this delineation did not account for all cannabinoids with intoxicating effects. The legislative body focused primarily on delta-9 THC as the indicator distinguishing legal hemp from illegal marijuana, inadvertently leaving a grey area for other psychoactive compounds.

The presence of THCA in hemp products highlights a legislative oversight, as this cannabinoid can convert into delta-9 THC when heated. Congress’s intent to regulate intoxicating substances within hemp remains only partially fulfilled due to this unforeseen loophole, which renders the delta-9 threshold an absurd result.

Whether intentional or not, the 2018 Farm Bill’s language has led to a burgeoning market of hemp-derived cannabinoids like THCA and Delta-8 THC. Such compounds, while compliant with the delta-9 THC threshold, introduce intoxicating effects that challenge the original congressional intent to sanction only non-intoxicating cannabis derivatives.


In conclusion, the Absurd Result Principle serves as a crucial tool in interpreting laws and regulations, particularly in the context of cannabis legislation. One example of this principle in action can be seen THCa because Congress intended to ban intoxicating hemp and required total-THC testing, but a hemp company only looks to Delta-9 levels for its purported compliance with federal law.

By applying the Absurd Result Principle, judges interpreting the text of the Farm Bill can identify conduct of vendors of certain hemp products and rectify inconsistencies and ambiguities in hemp laws to promote the intention of Congress to legalize hemp while controlling its psychoactive elements.

Thomas Howard

Thomas Howard

Licensed to practice since 2008, Thomas Howard has represented numerous financial institutions in litigation to enforce their security interests.
Homegrown Cannabis Co's Cannabis Seeds
Thomas Howard

Thomas Howard

Licensed to practice since 2008, Thomas Howard has represented numerous financial institutions in litigation to enforce their security interests.

Table of Contents

Related Posts

Want to win a license?

Here’s where you can learn how we’ve won before and will again.