THCA, Explained
Understanding THCA Legality in Wisconsin
THCA (tetrahydrocannabinolic acid) is a chemical compound found in raw hemp and cannabis plants that ultimately converts into THC (tetrahydrocannabinol) when heated. A common misunderstanding is that the forming of THC means that the plant is no longer legal. However, THCA contains a carboxyl group that is only removed when heated over 200 degrees Fahrenheit (or when combusted) . As such, raw cannabis containing THCA is legal, because technically the THCA never gets heated above 200 degrees Fahrenheit. When the buds or products containing raw cannabis material are smoked or vaporized, the carboxyl group is removed and becomes THC, which will produce psychoactive effects in the user. This is the phenomenon that leads regulators to believe that raw cannabis is legal and not subject to the safe harbor under the Farm Bill and Wisconsin version of the Farm Bill.
Cannabis Laws—Federal vs. State
Federal cannabis laws apply uniformly to every state in the union, which means that those laws supersede state laws. And this is where it gets a bit murky. You see, the unlawful nature of cannabis on the federal level comes down to the Schedule. If a form of cannabis is on Schedule 1, the federal laws apply to that form. Again, this is why THC is still illegal under federal law, but not CBD—because the federal government has accepted CBD as an approved compound.
The United States government, through the Controlled Substances Act (CSA), maintains a list of substances that are considered dangerous or illegal, including the penalties for possessing or selling those substances. The Controlled Substances Import and Export Act and the Federal Food, Drug and Cosmetic Act also impose criminal sanctions for violations of drug-related legislation. At the top of the list are Schedule 1 drugs, of which cannabis is one, as defined in 21 USCS Section 812(b)(1), which states in part that "Laws that prohibit a person from manufacturing, distributing, or dispensing or possessing a controlled substance in an unlawful manner are Implicit in the definition of that term" and further that "[a]ny material, compound, mixture, or preparation that contains any quantity of the following: THCA" is a Schedule 1 substance, as listed on 21 USCS section 812(c)(10).
All of this begs the question, is THCA legal at the federal and/or state level? And that question is a complicated one, we can assure you. The difference between the federal and state approach is that federal law does not distinguish between cannabis compounds that contain psychoactive output and those that do not. The federal government just lists all cannabis compounds as illegal (Schedule 1) with the exception of FDA-approved uses. THCA, however, does not create a psychoactive effect, so it is not controlled or outlawed by the federal government.
This is not the case at the state level. For example, Wisconsin, in 2017 signed into law its CBD-only bill, also known as the Medical Marijuana and Cannabidiol Program, or MediCannBiz, which provides a very strict structure for legal, medical cannabis use. This law allows only an extremely small segment of the cannabis plant to be lawfully licensed for sale and use—the non-psychoactive part of cannabis. The result of which means that any product that contains THC, by definition, cannot be lawful in Wisconsin.
The Legal Status of THCA in Wisconsin
In the state of Wisconsin, tetrahydrocannabinolic acid (THCA) "is not a controlled substance." Wis. Stat. § 961.14(4k) (2015-2016), Nonetheless, any attempt to apply that sentence to the bulk purchasing and manufacture of THCA in its raw form, outside of the stringent requirements for medical use in Wisconsin’s medical marihuana program, would be misguided. Where the sentence seems to suggest that THCA sits squarely outside of Wisconsin’s controlled substances regime, that view is incorrect. Wis. Stat. § 961.14(4k) (2015-2016) does not serve to declassify or repurpose THCA, rather, it is an exception to the rule applied by the state of Wisconsin in determining whether a substance is or is not a controlled substance. For the purposes of that rule, THCA turns, and remains, as a cannabis concentrate. The relevant question for manufacturers, thus, remains, "can this putative THCA be classified and forced into compliance with the rules regarding THC?"
When analyzed in the context of the rest of Wisconsin’s Controlled Substances Act as a whole, Wis. Stat. § 961.14(4k) means that while THCA is not a controlled substance in and of itself, there are requirements at its manufacturing level that require companies to comply with the state’s stringent regulations regarding the manufacturing and sale of other cannabinoids, resulting in the same outcomes. Specifically, while the sentence "is not a controlled substance" means the product is not in and of itself a Schedule I, II, III, IV, V or VII controlled substance; its manufacture and subsequent sale to the end consumer, nonetheless, requires registration with the Department of Justice, if that product is to be distributed legally without risk of penalty. Wis. Stat. §§ 961.32(1)(a)-(f), 961.32(2)(a)-(c). It is likely, therefore, that any conduct involved with the bulk manufacture and sale of THCA to an end-consumer would run afoul of the Department of Justice’s registration requirements for hemp extract registration. By failing to register with the Department, those involved with the conduct in question would be subject to the same potential penalties were this conduct to be any other form of THC.
And indeed, Wisconsin’s Controlled Substances Act as a whole is primarily concerned with the regulations applied to the manufacture and sale of controlled substances. Wis. Stat. § 961.32. If the Department of Justice was indeed going to allow for a non-THC production model, it is likely it would have issued a directive under Wis. Stat. § 961.32(3)(a) regarding the specifics to be followed. On the contrary, the regulations regarding an applicant’s registration under hemp extract regulations explicitly states that hemp extracts must contain 0.3% Δ9-THC or less, driving the point home that even considerate steps by DYI producers attempting to comply with hemp extract regulations will nonetheless run afoul this DoJ requirement. Wis. Stat. § 961.32(3)(b). Furthermore, hemp extract applications are held to the same burdens under Wis. Stat. § 961.32(3)(c) that apply to all controlled substance manufacturing applicant reviews. This means that even the most ardent, compliant cannabinoid producers and retailers in Wisconsin are potentially at risk until the state enacts clearer guidelines regarding the manufacture and sale of new non-Δ9-THC variants such as THCA.
Possession and Use of THCA
The criminal implications THCA use is something that many Wisconsin residents are curious about. While the THC concentration is typically what is tested for in illegal drug cases, in a state where medical marijuana has been legalized, the THC concentration is not the telltale sign of a crime. THCA is a non-psychoactive cannabinoid, unlike the THC found in cannabis plants today that does have psychoactive effects. Because of this, and since Wisconsin does not allow the use of raw cannabis plants, there is an open question of just how far law enforcement can go to enforce drug laws and prosecute those who may be in possession of cannabis containing mostly THCA. Under Wisconsin’s criminal law (Wis. Stat. § 961.41), it is illegal to possess any amount of tetrahydrocannabinols (THC). However, the legislation does not explicitly name purities of THCA . Because of this, local authorities are uncertain whether to pursue these cases — either for a lack of potency requirements (which would essentially decriminalize the use of raw cannabis plants) or lack of understanding of their legality altogether. Outside of possession, other uses of THCA are technically legal under Wisconsin law. In fact, it is a widespread misconception that the cannabinoid is illegal regardless of its usage. In states with more progressive laws, THCA is used for many medicinal purposes, and this practice could, theoretically, be extended to Wisconsin. However, until case law or statewide legislation on these issues emerges, taking a risk with THCA is still a risk. The Wisconsin Supreme Court chose not to rule on the loophole in a recent case (2016 WI 32), leaving the door open for disunified rulings on this fledging issue.
Developments in Cannabis Legislation in Wisconsin
THCA immunity in Wisconsin has apparently come and gone legally, but a precursor to legal immunity may have come about in the last several months, via a bill sitting on the desk of Governor Evers that includes language decriminalizing possession for personal use. That replacement will be a lot better than immunity, which only works for those who can rely on it when criminal charges are being pursued by prosecutors, and a lot worse than the current status quo. Such is how the cat-and-mouse game between marijuana law advocates and opponents rolls in Wisconsin and many other states. More than a year ago, I wrote this post that provides a good overview of the questions surrounding THCA and how it interacts with THC. A few weeks later, I wrote this one that served as a sort of update and reality check to the first entry, but mostly served as a diversion from some big changes proposed here in Oregon. In recent months, I’ve had one related loose end: what does the federal Controlled Substances Act (CSA) say about THCA? I was waiting on a thoughtful analysis to emerge, and I wasn’t disappointed by this one that provides more places to look, though for now, the question is still open. Since then, a number of developments regarding cannabis in Wisconsin have taken place, both in terms of potential for protecting home grows and for much more liberal use of cannabis by adults. As noted, Governor Evers has a bill on his desk that would allow prosecutor discretion and cite and fine for up to 25 grams of possession or be fined $10 for smoking in public. Other measures include allowing marijuana in food, edibles and drinks; growing at home; delivery; and industrial hemp provisions. It is interesting to note that the industrial hemp section did not include the language on cannabinoid production that was making its way through, and has been pushed back to 2020. The irony cannot be lost that hemp, with its higher CBD content and not its THC content, has been available since last year whereas hemp mixed with THC, that has a higher psychoactive effect, may not become available till next year. Of course, Attorney General Burns’ reaction was that the bill "sends the wrong message to our young people that do drugs," but that will always be the response to even the most mild cannabis reform legislation, and expects that a lot of states will look at Wisconsin as providing a rationale for why they are going to continue their prohibition against marijuana. So, none of that is new, and the new news is that Wisconsin Governor Tony Evers is going to sign the bill into law.
What’s Next for THCA in Wisconsin
The future of THCA legality in Wisconsin will likely reflect similar forces as those at play on the federal level. Namely, the ongoing conflict between various branches of government over the path forward for marijuana policies has left significant gray areas over the legality and legitimacy of certain uses of cannabis products. Until a new law is passed by the State Legislature, which seems unlikely in the near term, or a legal precedent is set that more clearly delineates when cannabis product use is appropriate, the status quo will carry forth, so long as neither side elects to get aggressive in enforcing their view of the legality of the situation.
One area of focus will be how much of an impact advisory opinions such as that from the Department of Agriculture , Trade and Consumer Protection’s ("DATCP") carry in the eyes of the public and the courts. The DATCP’s view is that THCA flower is illegal in its raw form, but potentially legal if it undergoes a "manufacturing process". But note this does not make the product legal in every state that may have different laws on cannabis legality, nor does it indicate that the State Legislature believes that it is legal overall. Rather, the fact that the Department believes that its findings are right enough so as to warrant an opinion on them suggests that the State Legislature may be more amenable to these uses of THCA as the years go by, and that there will be more clarity on the subject not only in the courts, but also at the agency level.