Proposed Tennessee Rules Seek To Close Hemp THCA Loophole

Proposed rules to regulate hemp in Tennessee could put a limit on the total amount of all forms of THC allowed in products, potentially closing what some see as a legal loophole that has led to the marketing of hemp flower high in THCA. When smoked, THCA converts to delta-9 THC, the cannabinoid primarily responsible for the psychoactive effects of weed.

In April 2023, Tennessee lawmakers passed legislation to regulate and tax hemp products grown, manufactured and sold in the state. Under the bill, the Tennessee Department of Agriculture was tasked with developing rules to govern the industry, including regulations for product testing, compliance and enforcement. In December, the department released a draft proposal of the new rules mandated by the legislation.

The 2018 Farm Bill legalized hemp at the federal level, defining hemp as cannabis that contains no more than 0.3% delta-9 THC. Using this definition, many hemp growers have begun producing cannabis that is high in THCA, a cannabinoid that is converted to delta-9 THC when subjected to heat through a process known as decarboxylation. 

Federal regulations require hemp to be tested for THC content within 30 days of harvest, using a test that combines the amounts of delta-9 THC and THCA using a specific formula to determine total THC. Cannabis with more than 0.3% total THC at testing time is considered marijuana under federal law and is still illegal.

Some hemp growers, however, have developed agricultural processes and strains of cannabis that do not express high levels of THCA until late in the 30-day testing window. By testing early in the window, growers can produce hemp flower that complies with regulations at testing time but has high levels of THCA after harvesting and packaging. As a result, THCA hemp flower is available in many states that have not legalized cannabis, despite the fact that it is psychoactive when smoked or vaped.

The companies marketing these products argue that they comply with the Farm Bill and thus are legal. Others, however, see this interpretation as a loophole that is likely to be closed. Already, several states have taken steps to regulate hemp cannabinoids.

“There is a very cat’s-out-of-the-bag mentality around it. Some people view this as the actual legalization of cannabis in America,” Madeline Scanlon, cannabis insights manager at market data analyst firm Brightfield Group, told MJBizDaily.

“Other people view this as a loophole to be squashed and are advocating for it. But no matter, it’s out there,” Scanlon added. “People can buy it just like they would normal cannabis.”

New Rules Tighten Legal Definition Of Hemp

The new rules proposed by the Tennessee Department of Agriculture would redefine hemp by requiring finished products to have no more than 0.3% total THC. Hemp advocates say the rule would make many THCA, delta-8 THC and CBD products that are available now illegal, with devasting effects on the state’s hemp growers and retailers.

“Unfortunately, they are regulating it out of business,” Kelley Hess, executive director of the Tennessee Growers Coalition, told the Chattanooga Times Free Press in January. “They are creating law in the rules and are exceeding their authority in creating a new definition of hemp in the rules outside of the law.”

The Department of Agriculture’s proposed rules would also allow it to conduct random inspections and test products being sold by retailers. Hemp advocates argue that by the time the products have been manufactured and received by retailers, some THCA may have decarboxylated, making them contain more than 0.3% delta-9. Hess says that the rule would “wipe out” the industry for THCA and CBD flower in Tennessee.

“There is practically no way that a farmer or grower could meet all the rigorous standards on the growing side in addition to all of the standards they have put on for their products to be put on the shelf,” Hess said.

Hemp Advocates Sound Off About Proposed Rules

The Department of Agriculture held a public hearing on the proposed rules in February. According to the Tennessee Growers Coalition, between 200 and 300 hemp industry supporters attended the hearing to express their views on the draft rules. Andy Chesney, owner of the Hemp House in West Knoxville, testified before regulators at the hearing.

“By eliminating THC, you’re not really gaining the full effects of the plant, or the full benefits of it,” Chesney said. “And so from a consumer perspective, the frustrating part is that what seems to be considered by the powers that be in Tennessee, is this getting high and regulating people who are attempting to get high.”

Kim Doddridge, public information officer for the Tennessee Department of Agriculture, said after the hearing that the agency is currently reviewing the public comments and developing the final rules. She also noted that the law requires the department to finalize the new rules by July 1.

“The record, responses, and final rule coming from the February 6 hearing will be submitted to the TN Attorney General’s Office,” Doddridge said, according to a report from local media. “Their office will review the final rule for legality and constitutionality, and if approved, the final rule will be filed with the Secretary of State’s Office and will be effective 90 days later.”