Can THCA Flower Really Be Legal Hemp?

Chris Fagan, owner of the Texas-based Bee Hippy Hemp, was almost two years into his apparently-legal hemp business when cops raided his home and store.

Despite Fagan trying desperately to convince them that his products were legal hemp – Certificate of Analysis (COA) in hand – he was jailed on suspicion of selling marijuana. Specifically, Fagan got in trouble for selling THCA flower.

Naturally, this raises a couple of questions: what even is THCA flower? And is it legal to sell as hemp? We’ve spoken to scientists and legal experts to find out.  

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Key Takeaways

• Scientifically speaking, high THCA hemp flower is essentially the same as ordinary cannabis, except it has less than 0.3% of the THC in non-acid form.
• Legally, based on the 2018 Farm Bill and any state law which doesn’t impose a “total THC” standard on finished products, THCA hemp flower is not a controlled substance.
• It’s very unlikely that commercial THCA hemp products on the market are naturally grown hemp. The THCA levels are too high for a typical hemp plant. 
• Fake certificates of analysis (COAs) are very common in THCA hemp and we have identified COAs that were edited without permission from the lab. 

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THCA Flower Is Basically Cannabis Labeled as Hemp

The answer to “what is THCA flower?” depends on if you want the legal answer or the practical answer. Legally, in some circumstances it can be hemp. Practically it is cannabis, just like in dispensaries.

THCA is tetrahydrocannabolic acid, essentially the acid form of the ordinary THC found in cannabis plants, which by itself doesn’t have any effects on users.

However, when you “decarboxylate” cannabis, you’re converting the THCA found in the flower to the ordinary form of THC which does have an effect on users. If you make edibles, you do this as a separate step, but the act of burning the cannabis to smoke it is a way of decarboxylating it.

So, ignoring any specific legal definitions for now, all cannabis is “THCA flower” in some way.

Specifically, the majority of THC in cannabis plants is in the form of THCA (abstract at journal), with comparatively little “ordinary” delta-9 THC.

RELATED: THC vs. THCA: Health Benefits and Effects

The common estimate is that you consider 87.7% of the initial THCA to become THC after decarboxylation (based on the different molecular weights), and that’s why a “low THC, high THCA” plant will get you high – it’s the same stuff they sell in dispensaries.

We asked Dr. Erik Paulson, lab manager at InfiniteCAL Labs, about whether there is a meaningful distinction between THCA hemp flower and ordinary cannabis flower, and he pointed out, “As we all know, there is both a political component to this question as well as a scientific one.”

Dr. Paulson briefly discussed the legal distinction, mentioning the 87.7% conversion from THCA to THC, adding that there can be an argument that “it was not the intention of the drafters of the [Farm] bill to exclude the main source of THC in the plants from the determination of the plant as hemp or cannabis.”

But he continued, “From a scientific perspective, the plant doesn’t care what the Farm Bill says. Since these are all forms of Cannabis sativa L., starting in the 1970s the flower was categorized into different chemotypes based on which compound is being formed more preferentially. The commonality between them is that THCA and CBDA are both formed from CBGA, the ‘mother cannabinoid.’

“Plants presenting Chemotype I are THCA dominant, because they have the enzyme present that converts the CBGA to THCA (THCA synthase), and they are typically classified as >0.3% THC and <0.5% CBD. Plants presenting as Chemotype II are both THCA and CBDA dominant, containing both THCA synthase and CBDA synthase, and are classified as >0.3% THC and >0.5% CBD. Chemotype III plants are CBDA dominant (CBDA synthase only), containing less than 0.3% THC and >0.5% CBD. Chemotype I is what we would traditionally call cannabis or marijuana, while Chemotype III would be traditional hemp flower, and Chemotype II is essentially a hybrid of the two.”

He adds that this is likely the source of the 0.3% THC cutoff chosen by the law, but points out that the cannabis analyses of the time used gas chromatographic instruments, which decarboxylate the THCA and CBDA into THC and CBD as part of the process. Now, liquid chromatography analyses are common, and these don’t decarboxylate the THCA before analysis.

He concludes, “So, language that specifies 0.3% THC in the plant, as opposed to mentioning THCA explicitly, is likely a remnant of that era of cannabinoid analysis.”

However you want to slice it, at its core there is little to no difference between ‘THCA hemp flower’ and regular cannabis flower.

Erik Paulson, PhD

“If there is a scientific distinction between what is called THCA ‘hemp’ flower and cannabis flower (which again, would come down to a fleeting time period between harvest and the time when decarboxylation would bring the THC level above 0.3%), it would have to be that the genetics are selected for that are more resistant to decarboxylation. There is no biosynthetic pathway to convert THCA to THC, but there may be, perhaps, a way in which the trichomes are designed that could slow down the decarboxylation process. The rest would come down to various factors on how the flower is treated, like temperature of curing, storage conditions, and time prior to testing.

“The thing is, you can’t stop the train once it’s started. As the flower sits on the shelf, even if it was at <0.3% THC to begin with, as it sits the THCA will decarboxylate into THC. As soon as it crosses that 0.3% threshold, it would be considered cannabis/marijuana flower regardless of what you defined it as before. However you want to slice it, at its core there is little to no difference between ‘THCA hemp flower’ and regular cannabis flower.”

To summarize: from a scientific perspective, the difference between “cannabis” and “hemp” is simply a line drawn in the sand at a particular point in time using a rough rule-of-thumb. A plant can legally be “hemp” one day and then “cannabis” the next. There are certainly different chemotypes roughly corresponding to hemp and cannabis, but the boundaries between them are much blurrier than the law might like.

And now we need to bring those specific legal definitions back into play. Because in reality, based on the 2018 Farm Bill, anything with less than 0.3% delta-9 THC – not THCA – is considered to be “hemp.”

This means, at least in theory, that basically any amount of THCA is acceptable provided that the delta-9 THC level is below the 0.3% threshold. This might sound a little unlikely, and you’d be right to be suspicious because it isn’t quite this simple.

Is THCA Legal?

The short answer is that if the pre-harvest test reveals that “total THC” is below 0.3% by dry weight and the specific state doesn’t have a total THC standard for finished products, then THCA is legal hemp.

Federal Statutes Account for THCA, But This Is Only for Pre-Harvest Testing

The most common objection to this conclusion is an understandable one. In the 2018 Farm Bill, it states clearly that (under Subtitle G, 7 USC § 1639p.(a)(2)(A)(ii)/PDF page 421 of 530) a state or tribal hemp production plan must include “a procedure for testing, using post-decarboxylation or other similarly reliable methods, delta-9 tetrahydrocannabinol concentration levels of hemp produced in the State or territory of the Indian tribe.”

Likewise, in 7 CFR § 990.3 it states, “The procedure must include a validated testing methodology that uses post-decarboxylation or other similarly reliable methods. The testing methodology must consider the potential conversion of THCA in hemp into THC and the test result must report the total available THC derived from the sum of the THC and THCA content.”

Federal law also mentions the common formula (7 CRF § 990.1): Total THC = (0.877 * THCA) + THC.

So doesn’t this discount basically every THCA product on the market from being hemp?

No. As international cannabis lawyer Rod Kight points out in his blog, this applies to hemp production, which means “cultivation” in the context of the federal rules.

We spoke to Rod about this, and he explained that, “The total THC standard, referred to in the 2018 Farm Bill and USDA rule as a ‘post-decarboxylation method,’ is solely required for hemp plants pre-harvest.”

This is usually where the disagreements start, so Rod gave us a detailed run-down of what federal law actually says about post-decarboxylation testing:

“Because this point is widely misunderstood I will explain it in detail. The Farm Bill only addresses ‘post-decarboxylation’ twice. In the first statutory provision, 7 USC § 1639p(a)(2)(A)(ii), it sets forth the criteria that states and Indian tribes must comply with in order to ‘have primary regulatory authority over the production of hemp’ within their jurisdictions. The second statutory provision, 7 USC § 1639q(a)(2)(B), is similar in that it sets forth the criteria that the USDA shall use to ‘monitor and regulate [hemp] production’ in states that do not have an approved hemp plan and thus do not have primary authority over hemp production within their jurisdictions. That’s it.

“The key word in both of the above provisions is ‘production.’ In the context of hemp, ‘production’ is a legal term of art. Under 7 CFR § 990.1, to ‘produce’ means: ‘To grow hemp plants for market, or for cultivation for market, in the United States.’ Additionally, 7 CFR § 718.2 defines a ‘producer’ as ‘an owner, operator, landlord, tenant, or sharecropper, who shares in the risk of producing a crop and who is entitled to share in the crop available for marketing from the farm, or would have shared had the crop been produced. A producer includes a grower of hybrid seed.’ In other words, to produce hemp means to grow it. This means that the post-decarboxylation method is required in the context of growing hemp. Once the hemp has passed the required pre-harvest testing it may be harvested. Once harvested, the sole statutory metric to distinguish legal hemp from illegal marijuana is the concentration of delta-9 THC, not ‘total THC.’ The statute is very clear about this.”

To summarize, these oft-quoted rules do place limits on hemp, but these limits only apply to the hemp prior to harvest and are not automatically applied to finished hemp products.

This means that as long as a crop tests below 0.3% THC + 87.7% THCA as many as 30 days prior to harvest, it is a “hemp” crop and anything sold from it with less than 0.3% delta-9 THC is “hemp” unless otherwise clarified by state law.

Is There a Post-Harvest “Total THC” Test for Hemp?

The key point is that without a post-harvest requirement that “total THC” comes in under 0.3% by dry weight, there is no limitation on THCA content in federal law. However, some states do institute a total THC standard for finished hemp products.

For example, in Oregon the state’s hemp rules say clearly (603-048-0100(6)(b)), “A licensee may not sell an industrial hemp product that contains more than 0.3 percent total THC to a consumer unless licensed as [an adult-use cannabis retailer].”

However, in the absence of such explicit rules, there is no “total THC” standard for finished products.

Rod Kight explains, “If a state has a ‘total THC’ standard for post-production hemp and/or hemp products, then THCa flower is not lawful in the state.”

He also points out that there is a potential issue here, “With that being said, there is an open issue that is playing out in courts across the country regarding how far a state can go in re-defining and regulating hemp. For this reason, state-level ‘total THC’ requirements for harvested hemp and hemp products may be preempted by federal law. For example, a federal court in Arkansas recently found that a state may not redefine ‘hemp.’ That being said, this is an evolving issue and I would never recommend ignoring state law.”

In other words, it could be that using “total THC” is considered to be redefining hemp, which is not allowed by the Farm Bill.

However, for practical purposes – at least until this is fought directly in court – if a state has a “total THC” law for finished products, then THCA hemp flower is illegal in the state.  

States with total THC standards for finished products include:

• California (AB 45)
• Colorado (SB23-271)
• Connecticut (HB 6699)
• Hawaii (§328G-1)
• Kansas (HB 2167)
• Louisiana (HB 758)
• Michigan (HB 4517)
• Minnesota (Administrative rules 1565.0200, referencing 7 CFR § 990.1)
• Mississippi (SB 2725)
• New Mexico (HB 581)
• New York (cannabinoid hemp regulations)
• North Dakota (HB 1045)
• Ohio (SB 57)
• Oregon (603-048-0100)
• Rhode Island (H8232A)
• Utah (HB 227)
• Vermont (Vermont Hemp Rules – 1% limit for total THC in finished products)
• Virginia (SB 903)
• Wisconsin (94.55(1))
• Wyoming (HB 171)

Hemp THCA flower is otherwise banned in:

• Idaho (No THC in any hemp products)
• Massachusetts (hemp flower not allowed)

The situation is unclear in:

• Florida (SB 1020 – “total THC” is mentioned in the hemp THC limit, but not defined)
• Georgia (HB 213 – includes acids as part of its definition of “THC” but explicitly references Farm Bill for THC limit on hemp)
• Iowa (discussed below)
• Montana (HB 948 – requires a “total THC” concentration of less than 0.3%, but doesn’t define it)

It’s important to remember that not only can state hemp law be complicated and inconsistently enforced, in many cases it’s a little unclear whether the “total THC” standard should be applied to finished products.

For example, the Iowa Hemp Act (204.2(9)/page 2) calls the limit the “maximum delta-9 tetrahydrocannabinol concentration” and references the section covering testing hemp, which talks about testing crops using post-decarboxylation methods.

While this probably means THCA is included in the “maximum” value referenced in the Hemp Act, this term is never explicitly defined and it is not clear whether the THCA + THC values applies only to crop testing or also covers finished products.

To be clear, it seems reasonable to conclude that “maximum” in this case means “the amount accounting for the increase from decarboxylation,” but there is certainly room for debate about interpretation.

The overall point is that while we tried to list all “total THC” states here, it’s possible that there are others and in some cases it’s hard to work out what exactly the law means.

The DEA Steps in to Make Things More Confusing

In a time-honored tradition, the DEA waded into this issue in a June 2023 letter and confused matters further.

We also spoke to Neil Willner, a legal advisor to CBD Oracle and co-chair of the Cannabis Group at Royer Cooper Cohen Braunfeld, who described how this letter contradicts a plain reading of the law, “Under the plain language of the 2018 Farm Bill, the total THC requirement contained in the USDA regulations applies to just pre-harvest hemp. However, in a non-binding letter dated June 9, 2023, the DEA opined – in a convoluted way – that because Farm Bill regulations require testing using post-decarboxylation or other similarly reliable methods, ‘THCA must be converted to delta-9 THC and for the purposes of enforcing the hemp definition, the delta-9-THC level must account for any delta-9-THCA in a substance.’”

In other words, the “total THC” standard would be applied to all hemp based on this statement, which runs contrary to what we’ve argued so far. Understandably, this created some confusion among the hemp industry and its advocates.

However, as Rod Kight points out in his blog post about the statement, this really doesn’t change the fact that – as the DEA has said before – the delta-9 THC concentration alone is the thing that tells you whether something claiming to be hemp is a controlled substance.

The DEA is correct that post-decarboxylation testing is required, but off-the-mark when it implies that this is relevant to finished products.

This isn’t particularly helpful, though. In reality, this casual, ill-considered statement from the DEA will certainly create more uncertainty and trouble than it clears up. 

How Would Top Cannabis Lawyers Advise Clients on THCA?

We asked Rod Kight how he would advise a client interested in selling THCA hemp, and he explained exactly how confusion from law enforcement is one of the biggest problems they’re likely to face:

“The first thing I usually say is that distributing THCa hemp is the riskiest thing you can do in the legal cannabis industry right now. This is primarily due to a widespread lack of understanding about it, including a general lack of understanding about its legal status. Additionally, I inform my clients that law enforcement typically uses a ‘post-decarboxylation’ testing method, such as gas chromatography or a Duquenois-Levine field test, to determine the legal status of cannabis material it detains or seizes. Even though a post-decarboxylation testing method is not appropriate for post-harvest hemp, the fact that this method is widely used means that law enforcement may press charges based on the test results, thus requiring a person to defend herself in criminal court based on a ‘false positive’ result. Similarly, a regulatory agency that uses a post-decarboxylation method sometimes detains products based on the results.

…distributing THCa hemp is the riskiest thing you can do in the legal cannabis industry right now.

Rod Kight, Attorney at Kight on Cannabis

The legal defense to these charges and/or detainments is, of course, that a post-decarboxylation test turns lawful hemp into unlawful marijuana- it literally creates the molecule (D9) that it is looking for and is thus invalid. It is akin to evidence tampering. Unfortunately, there is very little legal precedent on this particular issue and being charged with a crime or having a hemp product detained, even if you are eventually exonerated and get the product back, can be extremely stressful and expensive. For this reason, I spend most of my consulting time with clients discussing best practices and ways to mitigate the risks associated with THCa hemp.”

…good luck convincing law enforcement it’s legal hemp.

Neil Willner, Attorney at RCCB Law

Neil Willner raises the same point, “I think there is a significant practical risk of enforcement against anyone selling THCA flower as hemp given the near impossibility from distinguishing it from marijuana. Should a company’s driver with a batch of THCA flower get pulled over with THCA flower, good luck convincing law enforcement it’s legal hemp.”

As is often the case, the letter of the law is one thing, but in a way the over-zealous interpretations from law enforcement are the actually important thing when it comes to whether or not you’ll get in trouble.

As Rod pointed out, this is extremely stressful and expensive, and that alone might be enough to make people think twice about selling THCA products.

 So… Is THCA Legal Hemp?

Rod Kight answered this question plainly, “Yes. This meets the plain and unambiguous definition of ‘hemp’ in the Farm Bill.”

And Neil Willner concurred, “Technically, yes. However, many in the industry find it very difficult to believe that legally grown hemp that has less than 0.3% total THC 30 days pre-harvest will miraculously have 15% or greater total THC post-harvest.”

More specifically, in states without a “total THC” standard and while the provisions of the 2018 Farm Bill still apply: yes, hemp THCA flower is likely not a controlled substance.

However, there are undeniable risks to selling it (since it is, speaking scientifically, basically just weed) and it’s one area where even the more compelling explanations haven’t been tested in court.  

Can THCA Flower Really Be Natural Hemp?

Although we lean towards THCA being legal for the reasons discussed above, there is one issue in particular that is very important to understand.

As Neil argued, it’s pretty unlikely that you could grow a hemp plant that contains THCA at levels seen in commercial products.

Research into how cannabinoid content varies by type of plant and as it grows shows the problem. In this example, three “hemp” ish plants (with a very low THCA/CBDA ratio), three “marijuana” plants (with a high ratio) and one intermediate plant were compared as they grew. The supplementary information shows that 30 days before the end of the study, while the hemp plants did contain THCA (at an average of 0.7% in the flowers), the levels were nothing like the average of 17.7% THCA in the flowers of a marijuana-type plant.

You might be wondering how this works, if hemp has to be less than 0.3% for THC + 0.877 × THCA within 30 days of harvest. The figure given above is just for the flower, whereas the test mandated by law is more general than this, including a mixture of material from the five to eight inches at the top of the plant.

This basically means that there is more wiggle-room for THC levels in the flowers than you might think, and this type of plant can easily pass through.

But even if we forget about that, the flowers of the plants in the study could never lead to products like the THCA “hemp” flower currently on sale.

For example, this COA shows 27.2% THCA, a level that none of the marijuana plants in the above study even reached.

Of course it is possible a Cannabis sativa L. plant can reach these levels at harvest, but it seems highly unlikely that any plant could meet the definition of “hemp” 30 days before harvest and then still end up with that much THCA.

There is no way that flower testing at <0.3% total THC will suddenly jump to cannabis-like THCA levels (15-30%) within the 30 days between testing and harvesting.

Erik Paulson, PhD

Dr. Paulson echoed this point, “There is no way that flower testing at <0.3% total THC (to be compliant with USDA regulations) will suddenly jump to cannabis-like THCA levels (15-30%) within the 30 days between testing and harvesting. What is more likely is that this THCA flower is not cultivated or tested in a USDA-compliant manner, which would in itself call the product into question about being labeled hemp in the first place. This argument specifically only applies to THCA flower though. If hemp is grown in a USDA-compliant manner (<0.3% total THC) and then the CBD is converted into THC and other cannabinoids, that is a separate question of legality with its own considerations.”

The question then becomes how products with these types of THCA levels are actually made. We asked Dr. Paulson about this:

“This is an assumption, but the products are likely grown using largely the same flower and the same practices as cannabis growers, but the difference is that they are either closely monitored to ensure that the rate of decarboxylation is low enough that the THC levels will not rise above 0.3% upon harvest or before testing, or something that is often the case, the lab testing it makes sure that the number remains under 0.3%.”

There is also the possibility that products with such THCA levels – noting that some claim to be even higher than this – are made by spraying a compliant hemp crop with THCA.

This is not something which is known, and we aren’t saying that any specific company is doing this. However, it has been suggested by people with knowledge of the industry that this would be a way to achieve such THCA levels, and the evidence suggests – at the very least – that it probably couldn’t be achieved through natural growth of hemp plant.  

Overall, we have to conclude in general that these products are not solely natural hemp, and possibly not at all.

You might argue that it doesn’t matter, since the plant is classed as hemp based on the tests and there is no restriction post-harvest other than delta-9 THC content. So if THCA was sprayed onto compliant hemp, surely it’s still hemp?

Neil Willner commented on this point that, “If the THCA was extracted from compliantly grown hemp, then I suppose it would be technically legal hemp under the Farm Bill. It would be no different than ‘D8 Flower’ that we see in the marketplace where D8 is sprayed onto compliantly grown hemp flower.”

But this begs the question: does the THCA in these products really come from hemp at all?

Can You Trust COAs from THCA Sellers?

So after some discussion of the legality of THCA and the open questions about whether we’re dealing with “hemp” here in a more scientific sense, consumers face their own challenges in the form of inaccurate COAs provided by companies.

CBD Oracle’s previous research into delta-8 THC products has revealed some altered COAs, and this is a known problem in the industry more broadly.

We asked Dr. Paulson about this for THCA, based on his experience managing the lab at InfiniteCAL:

“Since there is so much in the eyes of, or at least the interpretation of, the federal legality of THCA hemp flower tied up in the 0.3% THC number, there is a lot of incentive to ensure that the number is below 0.3%. If you look at the various companies who sell THCA hemp flower online, the majority of them get their flower tested at four or five labs. There is a lot of overlap between the labs that test THCA products and delta-8 products, both of which require the delta-9 THC to be less than 0.3%. I am not calling out any specific result or any particular lab, but I would question anyone that says that they only send them to these labs because ‘they’re the only ones who know how to do it right.’

“What I can say from experience is, we have been asked to test THCA hemp flower that has been purchased by clients for verification tests, and every sample we have tested has been above 0.3% delta-9 THC. Since we are getting flower that may have been harvested weeks or months earlier, I cannot speak to what its original THC content was. I will say that while it is rare, we have tested some flower for official California cannabis compliance that has had its delta-9 THC amount lower than 0.3%. As I have mentioned however, once the 0.3% threshold is crossed, the question remains about whether that can still be called hemp.”

While Dr. Paulson understandably doesn’t name names, and rightfully points out that tests conducted after weeks or months won’t reflect the original THC percentage, it must be said that there is cause for concern.

For specific THCA products, we found two examples from Cookies that demonstrate how some suspicious-looking changes are not a big issue but others really are.

White Labeling: When Altered COAs Are Probably Not Unreliable

This COA for Dosido THCa Hemp Flower appears to have been performed for Cookies, but after some research was revealed to be a “white labeled” version of this COA, performed for Elevated Trading. We spoke to Mike Clemmons, lab manager at Marin Analytics (the lab which performed the test), who explained that:

“‘White-labeling’, or changing the customer name on the COA’s is not uncommon in the space as often a customer of the lab will move the product to a retailer or another distributor and it seems retesting the same product a week later is redundant.

Also, in the more than 20 years I’ve been involved in the cannabis industry, renaming strains for a myriad of reasons has been prevalent in the industry. Some rename strains to add something ‘unique’ to their board or to fill an inventory gap, and others to cash in on strains that are more culturally relevant.”

This is to say, not all apparently altered COAs are really an issue. In fact, as Mike points out, it’s usually much more straightforward than paying for a redundant new test and still establishing the link with the brand selling the product. You might also think this is dishonest, but clearly there is a reasonable pragmatic explanation.

Changing the Numbers: When Altered COAs Are a Red Flag

That is not always the case, though. This example from Cookies has been edited from an older version (which still doesn’t appear to be the original), with the usual white labeling but also edits to the numbers both on the graph and in the table.

The figure for THCA on the graph has been changed (from 20.95 to 21.10 – note the slightly smaller text on the new number) and the values in the table of results have been edited in a way that makes no sense (the “total cannabinoids” table value doesn’t match the one on the left and is lower than it should be).

Mike commented, “I do find that example a bit peculiar as it was definitely modified outside of our organization, but not in a way that was material to the actual result. It looks like someone put the number for total cannabinoids under the THCA bar in the graph, but left the numbers in the table unedited, which I imagine people would more likely depend on to be informed about the composition of the flower.”

Adding that, “The chromatogram and the sample ID do correlate to each other, and to a test we performed on a flower on 3/16/2023. The results depicted in the table of both reports are consistent with the result we got from that particular sample.

“In most cases, a bad actor would modify a report to either reflect a Δ9-THC level below the action limit on a sample that may not have passed, or ‘boost’ the THCA levels on a sample that tested lower than ideal. I don’t see either in this case.”

While it’s certainly the case that such a test was performed on a sample on this date and produced the chromatogram pictured, it’s a bit of a stretch to say this is not material to the result. This change may be a strange one – after all, they weren’t trying to cover illegality or anything serious – but of course changing the quantity of THCA reported anywhere in the COA is material to the result. It basically is the result if you’re buying for the THCA.

Dr. Paulson said that while he hasn’t heard of this being a problem or hasn’t seen an example, it could be that in many cases this isn’t even needed: “It is certainly possible that the selection of the lab plays a part in that, because if a lab will give you a result that you see is beneficial to you, you may see no need to doctor or fake a COA. In the end though, the burden of proof lies with the cultivators and distributors: make sure that you are working with a lab that you trust will give you the real result, not the result that you may want to hear.”

A Widespread Problem (It’s Not Just Cookies)

Cookies is just one example, but there are others. While we took both examples from their page, there are many other companies that undoubtedly make questionable changes to their COAs.

For example, comparing this Arete Hemp COA with another from VIIA Hemp shows a key difference: the VIIA Hemp COA doesn’t have a QR code. I emailed the lab, New Bloom, about this, and CEO John Kerns commented that, “New Bloom Labs will always publish a QR code on our reports. Any report without one has been altered. Unfortunately, in the QR-less example you sent me, I cannot confirm the authenticity of this particular report.”

Since there is no QR code, the lab report has been altered outside of the lab. It doesn’t really matter if they didn’t change the numbers, because they did alter the report and so as a consumer there is no way I can trust that the report is accurate.  

Other cases are less clear but still leave a bad taste in the mouth. Dr. Ganja uses a company called Cannalyze for its COAs, but this company only has an incredibly bare website and an apparently non-functioning batch number search. The COA has a QR code but it only leads to their borderline useless website. It’s difficult to work out where this company even is (and the answer is possibly Tel Aviv), much less determine that they are a reliable source of lab data.

The goal here is not to “call out” any particular company or otherwise imply that this is an issue confined to them (but at the same time, if they want to avoid such criticism they can simply take down any altered COAs).

Altered COAs Undermine the Whole Industry

Many companies would never alter a COA from a lab, but reality continually shows that some companies will, and this makes it difficult for consumers in a contentious area to really depend on what they’re shown.

You should definitely look at COAs before you purchase, but for THCA flower it does seem like there is a problem with unreliable COAs.

Mike Clemmons from Marin Analytics did echo this point, “I agree that modifying a COA, especially for the above stated reasons, undermines the labs, and has the potential of eroding consumer confidence in lab reports. However, I also feel like retailers posting the lab report is less about informing the consumer and more about demonstrating to authorities that the product in question is compliant to this interpretation of the 2018 Farm Bill.”

This is one area where we encourage anybody to call out doctored COAs and demand explanations from the companies responsible. We asked Rod Kight and Neil Willner whether such doctored COAs could be grounds for legal action:

Rod said, “Fortunately, there are lots of legal actions that can be taken against the people who provide fake and doctored COAs, from private civil actions based on breach of contract, fraud, and deceptive trade practices, to regulatory lawsuits, fines, and penalties by state and federal agencies. Under certain circumstances, a person faking a COA could face criminal charges. This is important because fake COAs are terrible for the industry.”

And Neil added, “This is extraordinarily risky because the company would not only be selling illegal marijuana, it would also be subject to myriad criminal fraud allegations and consumer protection actions by state attorney generals.”

We have contacted Cookies for comment about the example we found. If they offer a response we will add it here, but so far they have not. Otherwise, we would strongly recommend that any hemp company think carefully before sharing COAs with altered numbers or missing QR codes, for both the wider reputation of the whole industry and so they don’t open themselves up to a risk of legal action like the one ongoing in Nebraska, which discusses consumer protection issues more than the straight-up legality of hemp products.

THCA Is the New Battleground for Legal Hemp

The current situation for THCA hemp flower is a precarious one. The Farm Bill’s update may have been delayed, offering some breathing room to the many businesses which depend on it for their income, but THCA flower is controversial even in the context of the 2018 baseline.

The truth is that many people in law enforcement simply do not understand what the current law means and they often use tools that are totally inappropriate for testing THCA-containing hemp.

Chris Fagan, owner of Bee Hippy Hemp, the raided store from the introduction, described his situation in an email to customers:

“On June 7th, 2023 the Garland Police Department in conjunction with the Dallas Sheriff’s Department and local DEA task force illegally raided my home, an employee’s home, and bee Hippy Hemp Dispensary. What did they find? HEMP! Legally compliant hemp all with COA’s (certificates of analysis) proving the delta 9 THC threshold was below .3% on a dry weight basis. Unfortunately the police chose to ignore that we’re a legally licensed (License # 1662) and a compliant hemp business. They then decided to arrest myself (Chris Fagan – Owner) and David Dranguet (aka Water Dave, an employee). We’ve both been charged with felony “marijuana” possession charges.

This isn’t just a war against Bee Hippy, this is a war against your rights! The Garland Police Department does not represent the people of Garland and they clearly aren’t following State Law (House Bill 1325 ) or Federal Law (2018 Farm Bill).”

We asked Rod Kight if he expects to see more enforcement actions in the future:

“Unfortunately, yes. THCa hemp is emerging as the controversial and misunderstood hemp product of the day in a long line of controversial and misunderstood hemp products over the years. For this reason, I anticipate law enforcement action. This is not new to the hemp industry. I remember when CBD was controversial and resulted in law enforcement actions. Nowadays, this seems almost quaint and like it occurred a long time ago; however, law enforcement actions based on CBD distribution occurred within the past decade and resulted in major stress, loss of resources, and even criminal charges. Then the same thing occurred with CBD flower, followed by delta-8 THC, etc. Now the focus is on THCa hemp.”

Conclusion: The Future of THCA

Rod left us with a comment that really sums up the whole series of “controversies” surrounding hemp since the 2018 Farm Bill very neatly:

“With each new category of hemp product, I have renewed hope that law enforcement and uninformed detractors will finally read the plain language of the statute so that we can avoid unnecessary legal actions. Disappointingly, it seems that we have to go through the process of proving hemp’s legal status, in all of its forms, with each new product category that emerges.”

And this is where we are right now with THCA hemp. It was legalized by a badly written bill and the patchwork fixes some states used for other issues have been narrow enough in scope that many don’t even impact THCA. You can keep moving the goalposts, but people can still get it in the net, and some of them have been scoring the whole time.

What is needed, obviously, is a sensible piece of legislation at the federal level written to acknowledge and support the industrial and other uses of hemp while still protecting the rights of adults to consume intoxicating products if they want to.

We need legal hemp and legal weed, with consumer protection and safety-focused regulations for both. But what we will get – at least right now for THCA hemp – is another series of myopic legal arguments based on an ill-considered bill we just kept rolling over for another year.