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Jason Klimek is the co-leader of Barclay Damon’s cannabis team and chair of the Tax Committee of the New York State Bar Association’s Cannabis Law Section and the Policy Committee for the Cannabis Association of New York.
You have probably seen many brick-and-mortar and online stores claiming sales of tetrahydrocannabinolic acid (THCA), delta-8 tetrahydrocannabinol (THC), delta-9 THC, delta-10 THC, THC-O, and hexahydrocannabinol (HHC), stating that they are entirely legal under the 2018 Farm Bill, which legalized hemp with a delta-9 THC concentration of no more than 0.3 percent on a dry weight basis.
There is a lot of confusion surrounding the legality of these THC variants due to the openness of stores’ advertisements. However, a little science should help clear the air.
The scientific name for delta-9 THC is delta-9-tetrahydrocannabinol. Delta-9 THC is the decarboxylated (heated) version of THCA, which is the naturally occurring form of THC in cannabis plants and is not, by itself, psychoactive. There may be trace amounts of delta-9 THC in a cannabis plant due to the degradation of THC, but by and large, on a certificate of analysis for fresh cannabis flower, you will see THCA concentrations between 15 and 30 percent (perhaps higher or lower, depending on the cultivar) and delta-9 THC concentrations of typically less than 0.5 percent. When THCA is decarboxylated, it converts from THCA to delta-9 THC and becomes psychoactive.
Given the plain language of the Farm Bill, it would seem that Congress legalized cannabis across the nation as long as the delta-9 THC concentration is 0.3 percent or less — not an impossible task. However, knowing the state of cannabis politics at the national level, that was never the intention. Because of this confusion, the United States Department of Agriculture (USDA), the agency charged with regulating hemp at the federal level, released its hemp regulations, which clarify that delta-9 THC concentration is not the metric used to measure compliance with the hemp program standards. Instead, total THC is the metric used to determine whether a cannabis plant is hemp or a Schedule I controlled substance.
Total THC takes into account decarboxylation by looking at the molecular weight of THCA and adjusting for the loss of the acid group to determine the total amount of delta-9 THC in a plant.
Total THC = delta-9 THC + (.877 × THCA)
For example, a certificate of analysis that shows a THCA amount of 22 percent and delta-9 THC amount of 0.4 percent would have a total THC amount of about 19.7 percent.
To be clear, both the Farm Bill, through the USDA regulations, and New York State use total THC as the metric to determine whether a product is hemp or cannabis; neither solely relies on the delta-9 THC concentration to determine legality. New York State’s rules on THC testing hemp products and the requirement to test for total THC can be found in the New York State Hemp Licensing Program Guidance Document.
Therefore, any interstate sale of THCA not conducted by an entity authorized by the Drug Enforcement Agency (DEA) to possess cannabis is both federally illegal and illegal in New York State. Moreover, unlicensed sales of THCA products within New York are illegal.
We have covered delta-9 THC as the decarboxylated version of THCA, but there is more to the molecule than just being a derivative of THCA.
Going back to the definition of hemp, a hemp plant that is federally legal can have a concentration of no more than 0.3 percent total THC. There are now businesses claiming that they can sell delta-9 THC products because they extracted the delta-9 THC from federally legal hemp plants, put it into a product, such as an edible, and kept the delta-9 THC concentration less than 0.3 percent of the dry weight of the product, therefore making it federally legal.
For example, they claim that a chocolate bar weighing 167 grams, containing 5 milligrams of delta-9 THC is legal because 5 milligrams is less than 0.3 percent of 167 grams. However, it’s more complicated than that.
Because of the Farm Bill, the DEA modified its definition of cannabis extract to include substances with concentrations of greater than 0.3 percent delta-9 THC on a dry weight basis, excluding hemp and hemp extracts from the definition of controlled substances.
When extracting delta-9 THC from hemp, it is highly likely that the delta-9 THC concentration exceeded 0.3 percent at some point during the extraction process. Typically, extraction produces distillate that can be over 95 percent pure, meaning that a delta-9 THC distillate extracted from hemp contains 95 percent or more delta-9 THC. Once a product exceeds the 0.3 percent threshold, it becomes a controlled substance and cannot be legally sold — especially in interstate commerce.
Therefore, it is almost guaranteed that any delta-9 THC product not sold by a licensed dispensary is illegal at the federal level because it was likely made from a distillate that exceeded the 0.3 percent threshold.
As for delta-8 and delta-10 THC, while they do occur naturally in cannabis plants, they are present in such small amounts that they are typically not detectable on a certificate of analysis. Because of this, these cannabinoids are usually synthesized by converting CBD into delta-8 or delta-10 THC. When cannabinoids are synthesized, they are termed “synthetic cannabinoids’’ and fall under the Controlled Substances Act (CSA). The DEA stated:
Whether a cannabinoid product that has been synthetically produced from non-cannabis materials is controlled depends on whether that product contains ‘any quantity’ of a synthetically produced tetrahydrocannabinol. This includes cannabinoid products that are chemically identical to cannabinoids that naturally occur in the cannabis plant but that have been manufactured synthetically rather than by extraction from the plant.
The DEA recently released a statement that THC-O, which is wholly synthesized, is a synthetic cannabinoid and is therefore a controlled substance under the CSA. Additionally, to alleviate further confusion, the DEA, at a recent conference, stated that they are in the process of modifying their regulations to make it clear that delta-8 and delta-10 THC are controlled substances under the CSA if they are synthetically derived, regardless of the source material.
HHC, like delta-8 and delta-10 THC, may naturally occur in trace amounts but is synthesized for commercial use. HHC is produced by hydrogenating THC, which, like delta-8 and delta-10 THC, renders it a synthetic cannabinoid and is therefore illegal under the CSA.
Setting synthetic cannabinoids aside, the New York State Cannabis Law defines THC as “Delta-9-tetrahydrocannabinol; Delta-8-tetrahydrocannabinol; Delta-10-tetrahydrocannabinol and the optical isomers of such substances.” It has never been legal to sell delta-8 or delta-10 THC in New York State without a license.
In summary, you cannot sell THCA or delta-8, delta-9, or delta-10 THC in New York State without a license. Moreover, you cannot sell THC-O or HHC at all, as they are synthetic cannabinoids and are therefore illegal under both the CSA and New York State law.