Total THC for Compliance

With the passage of H.R. 2 in December of 2018, the Cannabis industry was born on the Federal level. This historic moment ushered in new Federal language and concepts around Hemp that unfortunately leave our industry with more questions than answers. One of these questions is the debate between total THC vs. only Delta-9 for compliance per the language in the bill. 

The Federal Farm Bill outlines the phytocannabinoid definition of hemp under section 297A as “(1) Hemp.-The term ‘Hemp’ means the plant Cannabis Sativa L. and any part of that plant, including the seeds thereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”

It further defines how to calculate phytochemical concentration levels under section 297B. A2ii as “(ii) a procedure for testing, using postdecarboxylation or other similarly reliable methods, Delta-9 tetrahydrocannabinol concentration levels of hemp produced in the State or territory of the Indian Tribe”. This presents a challenge to the language as post decarboxylation is not actually a method for testing concentration levels. 

Some possible methods for testing concentration levels for Cannabis include:

  • High-Performance Liquid Chromatography (HPLC)
  • Gas Chromatography (GC)
  • Liquid Chromatography (LC)
  • Mass Spectrum (MS)

The language used within the farm bill creates confusion in the industry on many accounts. THC is referenced first as only Delta-9. This can create a sense of false security from a compliance standpoint. When a company, farmer, or retailer receives a COA and the Delta-9 is under 0.3% it can be interpreted as “Compliant”. This fulfills the definition under section 297A as to the phytochemical delta-9 concentration levels but this section is not the final nor complete picture when we assess THC. Under section 297B, the farm bill confuses the formula for calculating total THC with a method of assessing it. The language used “postdecarboxylation or other similarly reliable methods,”, is the greatest indicator that the writers of this bill where expressing the fact you must convert all THC acids and isomers into the final metric needed for compliance, which would be the psychoactive Delta-9 THC. This particular error in the language is currently the hottest debate point in the Hemp industry. I have called many State Hemp Programs and reached out to the USDA to issue clarification on this. 

So far, in North Carolina, Paul Adams of the North Carolina Department of Agriculture and Consumer Services Plant Industry Division, has confirmed in writing and verbally, that the state of NC is testing Cannabis for Total THC using the post-decarboxylation formula within the testing method approved by the state. North Carolina, Georgia, Washington, and many other states have elected to expand upon the farm bill to make Total THC the final measurement and the “yardstick”.

There are states that have not agreed with this particular interpretation of the language within the 2018 Farm bill. States like Nevada only look for Delta-9 percentages without post decarboxylation for compliance. Having multiple interpretations on the farm bill has created a roadblock to conducting interstate business. What is compliant per the State of Nevada is not compliant in the State of North Carolina. This is an issue that requires the USDA to correct the language and issue a final saying. This confusion only serves to allow for the industry to operate without checks and balances. Currently, there is little to no enforcement to police the hundreds and thousands of companies and newcomers to the industry. Regardless if you cultivate for biomass or manufacture an end product, what stops anyone from using a COA from another batch or producing a false COA to meet compliance? Even if you don’t comply with a Total THC guidance, who is going to stop you from selling “hot” product. Then the argument is expanded if your state has a medical or recreational Cannabis program. If your state does have a program and your product is “hot”, will you be able to roll your non-compliant hemp products into your medical or recreational programs? The farm bill also outlines the ability to allow interstate transportation. This brings monumental challenges to our local and state LEO and Department of Transportations. 

If our states are all using multiple definitions of “complaint” Hemp how are we going to move anything from one state to another without issue? What is complaint in my state might not meet the requirements of a state I have to drive or ship my product through to get to its final destination. This could end up with your shipment being detained as well as your drivers or other personnel being charged with federal or state violations. Our industry is in need of firm guidance and definitive statements from our regulatory agencies. We also need to provide them with proper education and feedback so they can effectively carry out the duties they now possess. The majority of the policy writers and legislative body have never cultivated, consumed, or engaged with Cannabis on any level. Our industry leaders and companies that have emerged from the shadows of prohibition must take responsibility of action to help shape the future of this commodity to protect our farmers, families, consumers, and businesses. Until the USDA, or other regulatory federal agencies, clarify this we must err on the side of caution and better business practices to unite the industry rather than divide it.

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