What is THCA?
THCA is a chemical compound that is found in raw cannabis. THCA is one of the four most abundant cannabinoids in cannabis, typically comprising about 20% of its content. The compound was first isolated from cannabis in 1971 by Harvard chemist, Dr. Elias A. EINBINDER. Despite its major role in cannabis, THCA is not yet widely known or researched. Now that the legal use of cannabis by patients continues to expand, THCA is receiving more focus and study particularly as an extract in medicinal cannabis.
Structurally, THCA is tetrahydrocannabinolic acid, like THC. THCA differs from THC by one carboxylic acid group – the COOH group in the following formula: The COOH functional group limits THCA’s ability to cross the blood-brain barrier. THCA does not produce the "high" that is characteristic of THC because heat or time has not been able to convert it to THC.
Nonetheless, THCA does occur naturally in all cannabis plants at various levels depending on the age of the plant and the method of consumption. Hours or days after the cannabis plant is harvested, the THCA in the flower degrades; as a result a small amount of THC is converted to the more stable compound 9-THC, which is responsible for marijuana’s psychoactive high . Additionally, when cannabis buds are continuously exposed to light or heat, most THCA is converted to THC.
THCA is also the precursor to tetrahydrocannabinol (or THC and Delta-9-THC). Thus, while many hemp strains contain little to no THC (<0.3%), they may still contain substantive amounts of THCA (read more about the legality of hemp here). THCA has been shown to be non-intoxicating, and there are several therapeutic claims associated with the compound, such as:
People generally consume THCA in a few different ways. First, fresh cannabis flowers are consumed raw, mixed with smoothies, juices, smoothies, snacks, and other foods. These preparations are considered "live" foods, as they preserve all the compounds in raw cannabis consumables. THCA can also be consumed via vaporization of plant materials and cannabis oils extracts. Pure tetrahydrocannabinol (THC) can also be synthesized from THCA through decarboxylation (the loss of a carboxyl group COOH), but the average person will not do this at home.
The Difference Between Federal and Indiana Law Regarding THCA
Federal and state laws pose two different levels of analysis when inquiring about the legality of THCA. The federal government has a complex set of laws and regulations regarding cannabis that are predominantly enforced by the Drug Enforcement Administration (DEA). The DEA classifies cannabis as a schedule I drug and interprets the statute to waive any protections of state law. However, since 2014, the Cole Memorandum has given the states some autonomy in regulating cannabis with the states’ rights to regulate the substance so long as certain conditions are met. Accordingly, each state has created their own set of rules and regulations concerning cannabis, including the legality of THCA.
The most significant inconsistency between federal and state laws regulated under the Cole Memorandum is whether cannabis containing more than .3% THC by dry weight is regulated by states under the lenient terms of the Memorandum. The Cole Memorandum does not address the issue of states’ rights to regulate cannabis products above the federal limitations of .3% and states are well within their rights to impose restrictions on cannabis cultivation above the federal limits. Thus, anything above .3% THC by dry weight is considered illegal under federal law. If the plant is above the federal limits, the question then arises, "how does the cannabis plant affect the legality of cannabis concentrates?" There are myriad of cannabis extracts and forms, including resin extracts known as wax, shatter, budder, or crumble; concentrates like oils using butane, ethanol, or CO2; and THCA or CBD oils. Some of these extracts under state law are deceptively similar to other products made from illegal cannabis plants, like THC oil, which use regulated substances to extract THC from the plant at a percentage over .3%. Because that oil is high in THC, it falls within the prohibited substance. Therefore, the legality of these products is often dependent on their concentration of THC, as opposed to their concentration of THCA. In short, the legality of cannabis concentrates under Indiana law depends on the concentration and ratio of THC to THCA.
The State of Indiana’s Law on THCA
The answer to the question, "Is THCA legal in Indiana?" is somewhat complicated. Probably, yes. But, there are a number of "ifs." The first "if" is that the product contains a very low level of THC. More precisely, the product must have 0.3% or less THC under an analysis based upon dry weight. There’s also the legal definition of "marijuana" used in the Indiana Code. A substance must explicitly be excluded from the definition of marijuana to be lawful. Here’s the relevant provision from Ind. Code sec. 35-48-1-19.5: "(5) (A) As used in this subdivision, "hemp plant" means: (i) the Cannabis sativa L. plant; and (ii) any part of the Cannabis sativa L. plant, including any derivative, extract, cannabinoid, isomer, acid, salt of isomer, or salt of derivative of the Cannabis sativa L. plant. (B) Notwithstanding IC 15-15-13 (which establishes a program for the study of industrial hemp), the following are not prohibited under this article and are not considered marijuana: (i) A hemp plant that is cultivated under IC 15-15-13. (ii) Any part of the Cannabis sativa L. plant that is the result of academic research. (iii) Hemp extract that is the result of academic research. (iv) A part of the Cannabis sativa L. plant, including any derivative, extract, cannabinoid, isomer, acid, salt of isomer, or salt of derivative, that is: C. lawfully derived from: • A hemp plant that is cultivated under IC 15-15-13; or • A part of the Cannabis sativa L. plant that is the result of academic research. And, here’s the definition of "hemp extract," again, from Ind. Code sec. 35-48-1-19.5: "(9) as used in subdivision (5), "hemp extract" means an extract derived from the stalks and sterilized seeds of the hemp plant and having a total delta-9-tetrahydrocannabinol (Delta 9-THC) concentration of not more than zero point three percent (0.3%) on a dry weight basis." This is how I would read the definition of "hemp extract": if the substance in question has .3% or less total THC on a dry weight basis and is derived from the hemp plant, it is not prohibited under Ind. Code sec. 35-48-1-1.5(5). However, it should also be noted that hemp extract is defined in this manner in order to apply the definition in the context of the development of industrial hemp. That said, the wording is not ambiguous and I see no basis to argue otherwise. So, the question becomes – will the authorities interpret it in the manner described above?
Applicability of THCA’s Legality to Indiana Residents
Under Indiana law, the presence of any quantity of THC in a product may be sufficient to classify that product as a controlled substance. Consequently, if a product contains even a minute amount of THC, it could theoretically be deemed illegal by an Indiana law enforcement official. More concerning, however, is that these same provisions may also cover and criminalize the possession, sale, or use of low-THC CBD products.
As a result, a person could be subject to immediate arrest after coming into contact with wild hemp or cannabis plant, or after consuming or possessing even trace amounts of THC, whether negligently or as part of a course of treatment prescribed by a doctor for cancer, Crohn’s disease, acute pain or another condition also covered by the recently-passed Indiana medical marijuana law. Whether the Indiana medical marijuana law includes any exceptions for low-THC or incidental THC remains to be seen, but unless otherwise amended, the cannabis-detecting technology now being utilized in other states with more sophisticated medical marijuana and recreational cannabis laws could easily be misused in Indiana to police low-THC CBD products, CBD candies and other edible products.
Enforcement of Indiana’s provisions distinguishing low-THC marijuana from marijuana containing higher concentrations of THC may be of some concern to some Indiana residents, particularly those who are prescribed cannabis extracts high in CBD and low in THC for medical conditions like cancer , Crohn’s disease and other ailments and diseases which are also covered by the medical marijuana law, and who travel between Indiana and Illinois or any other state or jurisdiction with a medical marijuana program. Without exception, locational mitigation measures, like compartmentalized and fortified containers, heat-sealed vaults and other forms of packaging, will not shield the items from routine searches of the premises they inhabit.
The lack of controlled substance protections for low-THC marijuana, THC broths or oils, and oils, foods and beverages infused with THC or low-THC marijuana derivatives may subject even the most corner-conscious dispensary and dispenser to claims of contributing to the illegal trafficking of controlled substances. For example, the federal Controlled Substances Act, 21 U.S.C. Section 841, and the Indiana Controlled Substances Act, at Ind. Code Section 35-48-4-1.1, make the possession, sale or distribution of controlled substances such as marijuana, its extracts and derivatives within 2,000 feet of a school a Class C felony, punishable by up to eight years in prison and a fine of up to $10,000. If a dispensary’s place of business should be located near a school, treating cannabis extracts and derivatives as a controlled substance would significantly increase the property-related risks faced by the business. Such penalties could also apply to those who work for, own or invest in a dispensary of THC broths, oils, beverages and edibles.
Where the Law of THCA in Indiana Goes from Here
Looking ahead, the future of THCA in the state remains uncertain. Currently classified as illegal, recent scientific research continues to show that THCA is the non-psychoactive precursor to THC. Coupled with Indiana’s updated 2018 Farm Bill legislation authorizing the growth of industrial hemp, some have questioned whether the state will re-evaluate its stance on THCA. "I think that 2018 Farm Bill will push the Indiana legislature towards passing some hemp-centric regulation," said Thomas L. Kryder, Partner at Faegre Baker Daniels LLP. "I do expect some of the Indiana legislators who have been sponsoring bills for the last few years will reintroduce hemp bills and that the legislature will adopt some version of those bills this coming year." He went on to say that THCA will eventually be regulated at the federal level – whether through a technical analysis of the language in the current statutes or a hemisphere-wide reversal in these prohibitions with the eventual enactment of the comprehensive legalization of cannabis.
"We are getting closer to legalization all the time in most states , " said Phillip J. Segall, Counsel in the division’s Cannabis Law Group. "But until that happens, if a client wants to sell THCA in Indiana, we would recommend that the client review its marketing strategy, as there has been considerable publicity in the industry about changes in certain regulators’ stance on what is a cannabinoid, and the agency here in Indiana may pay attention to that."
Legislative priorities throughout the country have included broad studies on cannabis regulations, such as the West Virginia University Institute of Cannabis Research, the Oregon Cannabis Research Institute, and the National Cannabis Roundtable. By looking outside the state to the ongoing political discussions on cannabinoids, any changes in the regulatory framework could find their way back to Indiana’s legislature.