In the past few months, many of our Oregon hemp clients have asked us to clarify the testing requirements imposed by the Oregon Department of Agriculture (“ODA”). Unlike other jurisdictions that only test for tetrahydrocannabinol (“THC” or “delta-9 THC”) concentration, the ODA rules provide that any industrial hemp product sold to consumers must contain no more than 0.3 percent “Total THC.”
Under Oregon hemp law, “Total THC” means “the molar sum of THC and THCA [tetrahydrocannabinolic acid].” This creates some very important considerations for hemp farmers and related parties, and, as explained below, failing to account for this issue in production and sale agreements creates serious exposure. But first, some background on the “Total THC” standard.
THC and THCA are two compounds commonly found in the cannabis plant. As its name indicates, THCA is an acidic cannabinoid, whereas THC is a neutral cannabinoid, meaning it possesses active (psychoactive) proprieties. While these compounds are present in different forms, they are linked in that when exposed to heat or lights THCA converts into THC. This conversion process naturally occurs over time but can also be enhanced through a chemical reaction called decarboxylation. Specifically, decarboxylation removes a carboxyl group of THCA and releases carbon dioxide which turns the large 3-D shape of the THCA molecule into a THC molecule, which is smaller and can fit into a body CB1 (cannabinoid) receptors.
A while back, the ODA suggested in one of its public announcements that the “Total THC” testing requirements aimed to align with the 2018 Farm Bill. The 2018 Farm Bill defines “hemp” as, in part, “acids, […] with a delta-9 tetrahydrocannabinol [(“THC”)] concentration of not more than 0.3 percent on a dry weight basis.” (Emphasis added). Consequently, the ODA posits that because THCA is an acidic cannabinoid that “contains” THC, it must be added to the THC concentration to ensure that their total concentration does not exceed 0.3 percent. However, opponents of the “Total THC” approach have described this rational as flawed in that THCA and THC are separate and distinct molecules. As such, THCA does not “contain” delta-9 THC. Instead, a chemical process converts a THCA molecule into a delta-9 THC molecule.
States like Oregon also support the “Total THC” position because the 2018 Farm Bill provides that States and Native American Tribes that wish to hold primary regulatory authority over the production of hemp within their borders must submit a plan that includes, among other things, “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[.]” Although there is no “postdecarboxylation” testing method per se, the congressional intent was apparently to refer to a testing method known as gas chromatography (“GC”).
The GC testing method consists of heating up a hemp sample to separate out its compounds and measure them. This method is powerful enough to decarboxylate THCA in a sample, which means that GC generates the very molecule it is measuring, and thus, calculates the “totality of THC concentrations” found in a hemp sample. Many in the hemp industry have criticized this method, as it tends to increase the THC concentration in the hemp sample and pushes it over the 0.3 percent limit. This, in turn, limits the type of strains farmers can work with and gives farmers in jurisdictions that only require the testing of THC a competitive edge.
But regardless of which position is most meritorious, Oregon hemp farmers and processors are obliged to comply with these ODA rules. As we have highlighted in several of our blog posts (here and here), hemp players must strategically and carefully plan when entering into a hemp-related contract. This careful approach mitigates their risks of financial loss and litigation. Consequently, Oregon hemp farmers and processors should account for the “Total THC” testing requirements in their transactional documents with the assistance of experienced hemp attorneys.