If you’re involved in the hemp industry at any facet and you deal with product or transportation outside of your state, you’ve likely run into conflicting information on whether Total THC or Delta-9 THC levels make your product considered high THC cannabis and not hemp. The reason for this is that each state has its own laws regarding hemp and that there’s conflicting information at a federal law level in the 2018 Farm Bill. We’re going to break down all the information about this question in this article.
Note: This article is not meant to serve as legal advisement. If you are seeking legal assistance, please contact a lawyer involved in the hemp/cannabis industry. Below is our interpretation as of 5/7/2020. For complete up-to-date information, please check with your state authorities.
What Does Federal Law Say?
When it comes to what is legally hemp, the 2018 Farm Bill states the following:
‘‘SEC. 297A. DEFINITIONS. ‘‘In this subtitle: ‘‘(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.
While that seems fairly simple and would appear to point towards only measuring Delta-9 THC, the bill later states:
‘‘SEC. 297B. STATE AND TRIBAL PLANS.
‘‘(1) IN GENERAL.—A State or Indian tribe desiring to have primary regulatory authority over the production of hemp in the State or territory of the Indian tribe shall submit to the Secretary, through the State department of agriculture (in consultation with the Governor and chief law enforcement officer of the State) or the Tribal government, as applicable, a plan under which the State or Indian tribe monitors and regulates that production as described in paragraph (2).
‘‘(2) CONTENTS.—A State or Tribal plan referred to in paragraph (1)—
‘‘(A) shall only be required to include—
‘‘(i) a practice to maintain relevant information regarding land on which hemp is produced in the State or territory of the Indian tribe, including a legal description of the land, for a period of not less than 3 calendar years;
‘‘(ii) 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;
It is SEC. 297B 2Aii that causes confusion when it comes to measuring THC, as it states specifically “a procedure for testing, using postdecarboxylation or other similarly reliable methods”.
Why Does the Testing Method Affect How the Law Is Interpreted?
When it comes to testing for THC, there are two highly used and reliable methods: post decarboxylation and high performance liquid chromatography (HPLC).
- Post Decarboxylation – Decarboxylation itself is a process in which the acid cannabinoids (such as THCA) are heated to “activate” them which converts them to neutral cannabinoids like THC. To decarboxylate hemp, it needs to be heated around 220 degrees Fahrenheit for around 30 to 45 minutes of exposure — although the time varies.
- High-Performance Liquid Chromatography – This is a technique used to separate, identify, and quantify each component in a mixture. It works by using pumps to pass a pressurized liquid solvent containing the sample mixture through a column filled with a solid adsorbent material. Each component in the sample interacts slightly differently with the adsorbent material, causing different flow rates for the different components and leading to the separation of the components as they flow out of the column.
The two testing methods, as you can see, are quite different but both allow you to detect the amount of Delta-9 THC in hemp. HPLC, unlike post decarboxylation, however, does not need to convert the THCA to Delta-9 THC and instead of isolated the Delta-9 THC. As the law recommends post decarboxylation but also states that hemp is defined under .3% Delta-9 THC, this has lead the individual states to determine what the law means as it is somewhat contradictory.
As of this time, the USDA has not developed a standard test for determining Delta-9 THC. While they state one is in process of development, it is a complicated matter. Until that test has been developed, there will continue to be confusion between states and the federal law unless further clarification from the federal government is given.
Which States Use Delta-9 THC vs. Total THC?
If you are transporting your product across state lines, at this time it is best to use total THC for all product to ensure that you are not federally charged with possession. In addition, if your state does not define total THC, you should contact them to see how they will be testing (or assume total THC).
States That Use <0.3% Delta-9 THC
- Alabama – All parts and varieties of the plant Cannabis sativa, cultivated or possessed by a licensed grower, whether growing or not, that contain a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.
- Arizona – All licensees are subject to the collection of a representative sample of any Cannabis plant, hemp crop or harvested hemp in possession of the licensee or licensee’s agent to determine the total concentration of Delta-9 THC as reported by a certified laboratory to ensure compliance with this article and any state or federal law, rule or order regulating Cannabis as an agricultural commodity.
- Colorado – Industrial hemp means a plant of the genus Cannabis and any part of the plant, whether growing or not, containing a delta-9 tetrahydrocannabinol (THC) concentration of no more than three-tenths of one percent (0.3%) on a dry weight basis.
- Florida – That has a total delta-9 tetrahydrocannabinol concentration that does not exceed 0.3 percent on a dry-weight basis.
- Hawaii – Growing industrial hemp that when tested is shown to have a delta-9 tetrahydrocannabinol concentration greater than 0.3 percent on a dry weight basis or a tetrahydrocannabinol concentration allowed by federal law, whichever is greater”
- Illinois – Industrial hemp” means the plant Cannabis sativa L. and any part of that plant, whether growing or not, with a delta-9 tetrahydorcannabinol concentration of not more than 0.3 percent on a dry weight basis that has been cultivated under a license issued under this Act or is otherwise lawfully present in this State, and includes any intermediate or finished product made or derived from industrial hemp.
- Kansas – “Industrial hemp” means all parts and varieties of the plant cannabis sativa L, whether growing or not, that contain a delta-9 tetrahydrocannabinol concentration of not more than 0.3% on a dry weight basis.”
- Louisiana – ”Industrial hemp” means the plant Cannabis sativa L. and any part of that plant, including the seeds hereof and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not, with a delta-9 tetrahydrocannabinol (THC) concentration of not more 0.3 percent on a dry weight basis.”
- Maine – Any variety of Cannabis sativa L. with a delta-9-tetrahydrocannabinol (THC) concentration that does not exceed 0.3% on a dry weight basis.
- Maryland – “IN THIS SUBTITLE, “INDUSTRIAL HEMP” MEANS THE PLANT CANNABIS SATIVA L. AND ANY PART OF SUCH PLANT, WHETHER GROWING OR NOT, WITH A DELTA–9–TETRAHYDROCANNABINOL CONCENTRATION THAT DOES NOT EXCEED 0.3% ON A DRY WEIGHT BASIS.”
- Mississippi – the plant Cannabis sativa L. and any part of such plant, whether growing or not, with a delta-9 tetrahydrocannabinol (THC) concentration of not more than 0.3% on a dry weight basis.
- Montana – Total Delta-9 THC % test results of mature flowers from mother plants.
- New York – 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.
- North Dakota – and that the variety is known to have delta-9 THC levels below 0.3%
- Tenessee – THC means delta-9 tetrahydrocannabinol.
- Texas – with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis
- Vermont – Industrial hemp or hemp is the Cannabis sativa L. plant including all parts of the plant, whether growing or not, with a delta-9 tetrahydrocannabinol [THC] concentration of not more than 0.3 percent on a dry weight basis.
States That Define Total THC and use Delta-9 THC plus THCA
- Arkansas – The Arkansas Industrial Hemp Program recognizes delta-9 THC as being THC + 0.877*THCA.
- Minnesota – The final regulatory determination will be based on the total potential THC post-decarboxylation, which is equal to delta-9 THC + (THCA x 0.877) if the sample is analyzed via HPLC methodology.
- Oregon – the molar sum of THC and THCA [tetrahydrocannabinolic acid].
- Rhode Island – “Hemp” means the plant of the genus cannabis and any part of such plant, whether growing or not, with a delta-9 tetrahydrocannabinol concentration that does not exceed three tenths percent (0.3%) on a dry weight basis of any part of the plant cannabis, or per volume or weight of marijuana product or the combined percent of delta-9 tetrahydrocannabinol and tetrahydrocannabinolic acid in any part of the plant cannabis regardless of the moisture content.
States That Do Not Define Total THC
- California – a percentage of content of THC that is equal to or less than three tenths of one percent (.3%).
- Indiana – A license to grow hemp is required, and hemp must test below 0.3% THC. In the absence of a license, any cannabis production regardless of THC level is considered marijuana. Marijuana production is still not legal in Indiana.”
- Kentucky – Industrial hemp has the same meaning as in 7 U.S.C. sec. 5940 as it currently exists or as it may be subsequently amended;
- Missouri – This bill exempts industrial hemp, which is defined as Cannabis sativa L. containing no greater than 0.3% THC, from the definition of marijuana and the list of controlled substances.
- Nebraska – plants grown would be required to be submitted for testing to determine whether they contain less than 0.3 percent THC.
- New Jersey – By definition, industrial hemp is low (less than 0.3%) in tetrahydrocannabinol (THC)
- New Mexico – viable plants and plant material in excess of three-tenths percent and less than five percent THC.
- North Carolina – use of varieties with less than 0.3 percent THC.”
- Ohio – hemp must contain less than .3% THC.
- Oklahoma – By law, industrial hemp must have less than 0.3% THC.
- Pennsylvania – Industrial hemp is cultivated for fiber, seed and other purposes, and federal and state law requires that the concentration of THC must be less than 0.3% in industrial hemp.
- South Carolina – The law defines industrial hemp as cannabis that has no more than 0.3 percent THC.
- Utah – legal possession of hemp extract, or CBD oil, containing less than .3% tetrahydrocannabinol”
- Virginia – shall have a THC concentration not more than 0.3 percent on a dry weight basis.
- Washington State – CBD use is limited to edibles, oils, tinctures, and other products derived from marijuana. THC levels in all CBD products cannot exceed 0.3% on a dry weight basis.
- West Virginia – SB §447recognizing industrial hemp having no more than 1 percent THC as an “agricultural crop.
- Wisconsin – If the THC concentration rises above the legal limit of 0.3 percent dry weight, the crop must be destroyed.
- Wyoming – All license holders are subject to inspection and sampling to verify all parts of the hemp plant does not exceed the allowable three-tenths of one percent (0.300%) THC.
- Connecticut – Voluntary or ordered destruction of Hemp that is above 0.3% THC is at the licensee’s expense.
- Georgia – whether growing or not, with the federally defined THC concentration no more than 0.3 percent
- Iowa – Hemp plants (Cannabis spp.) have THC levels of 0.3 percent or less. Plants with THC levels above 0.3 percent are still considered controlled substances in the state of Iowa and must be destroyed.
- Massachusetts – Certification of Industrial Hemp through regulatory testing to ensure THC levels < 0.3%.”
- Michigan – The defining characteristic between hemp and marijuana is the chemical compound contained within each plant. Both can produce high amounts of Cannabidiol (CBD), a non-intoxicating chemical compound; however THC is produced at very different levels. While hemp can contain no more than 0.3% THC by dry weight, marijuana can contain up to 30% THC. Chemical analysis must be performed to ascertain THC levels.
- Nebraska – plants grown would be required to be submitted for testing to determine whether they contain less than 0.3 percent THC.
- Nevada – The plant Cannabis sativa L with a THC content of not more than 0.3 percent on a dry weight basis.
States Where Any THC is Illegal
- Idaho – The Idaho Attorney General considers hemp extracts with cannabidiol (CBD) to be a controlled substance unless it is derived from excluded parts of the hemp plant AND contains no tetrahydrocannabinol (THC).
- New Hampshire – Not Legal. Legislation Pending.
- South Dakota – Law failed to pass the state senate 5-4.