A friend of the company, Andrew DeWeese, recently published a recent LinkedIn post about Oregon's unorthodox stance on THCA and the priorities of local industry advocates. I wanted to focus my discussion on that post today. This is a fascinating post and I have all kinds of thoughts about it. here it is:
Let's break it down.
“THCA flower is federally legal.”
perhaps. This is something we have thought a lot about internally, both publicly and privately. My colleague Griffen Thorne published an article this summer with the sensational title, “So Long for THCA Products.” Griffen's article is just one of many parsing the language of the 2018 Farm Bill and 2023 DEA letter on the subject. See also: THCA and DEA: Rod breaks down the latest news from Rod Kight, a prominent attorney in the field.
You may not want to read all of that today. So, if my aunt asks if THCA flower is legal, here's the answer I might give: I would say this. “Someone at the DEA wrote a letter last year saying that's not the case. But the DEA is not a court, and the DEA doesn't set rules. And the DEA often loses in court. Some learned people I don't agree with the DEA, but the DEA isn't doing much about THCA flowers anyway. It's on sale everywhere! Finally, Auntie, the new farm bill might change the law this fall. No.”
People don't like such answers (“lawyer answers”) because lawyers tend to take workarounds and don't like to be fixed. However, please restrain me. I don't think THCA is legal under federal law. THCA is converted to Delta-9 THC when heat is applied, but I don't think Congress intended to legalize the intoxicating substance when writing the 2018 Farm Bill. We also acknowledge that this is one of the most confusing areas of controlled substances law. This likely has something to do with similar federal laws that require chocolate to be recognized as the legal equivalent of heroin. These laws are very tragic.
From a practical standpoint, I believe the three most important considerations regarding THCA are: a) There is no federal enforcement of THCA flowers or products. b) Federal law is likely to change this year. Because, again, I don't think Congress intended to legalize gas station marijuana in 2018. c) The opinions of each country are reflected. This leads to the next statement.
“But not in Oregon.”
Andrew is correct that Oregon is one of the few states that mandates total THC concentration testing standards. When Oregon adopted its standard in 2019, we did our best to promote it on our blog, but it seemed to fly under the radar. It's been about five years since then, and I don't know how well this is understood. I still frequently receive requests for representation from Oregon sellers of THCA products, but given that (at least in my opinion) there is no safe haven under Oregon Lawyer Ethics Rules. You will then have to decline representation from these sellers.
But it's not just state testing requirements that people need to understand. Several states have outright banned the purchase, sale, and consumption of products containing THCA within their borders. This means that anyone trafficking in THCA products must pay close attention to state and local laws in addition to familiarizing themselves with the problematic federal paradigm. Too many THCA proponents simply say “it's federally legal” and turn off their brains. This can be a disappointing move if you get pulled over by highway patrol and your truck smells like weed, even if you have a certificate of analysis, permit, etc.
“Oregon will effectively have interstate commerce in the cannabis sector.”
To achieve parity with THCA-friendly states, Oregon would certainly need to change its regulatory structure, starting with eliminating the total THC concentration testing standard. But Oregon State won't do that. This is not because states are not interested in interstate commerce solutions for the cannabis industry. Oregon was the first state to sign a marijuana export bill in 2019. Most recently, the OLCC appeared to support an interstate commerce proposal for marijuana seeds and addictive hemp products.
So why isn't the door open for THCA? Simply put, the two initiatives mentioned above are on the marijuana side of the equation. As we explained in December, hemp is hollowing out in Oregon. To that end, and in response to the LinkedIn post mentioned at the beginning of this article, cannabis economist Bo Whitney offered the following dire statistics:
Oregon hemp acres licensed (not necessarily planted or harvested)
2019: 64,142 people
2023: 2,417
2024: 55 people (currently)
There isn't much cannabis planted in the state anymore, so there isn't much of a cannabis lobby. All the legislative debate surrounding cannabis in the past few years has centered on local enforcement of THC growers masquerading as cannabis licensees. And even at the height of the cannabis boom five years ago, we somehow ended up enacting total THC concentration testing standards.
“Instead, the only cannabis legislation in the short session is license suspension and further enforcement.”
A fair statement. We are referring to House Bill 4121. This bill is actively moving through Congress and has been referred to the Ways and Means Committee. For more information, we took a detailed tour of HB 4121 last week.
OLCC licensees appear keen to address market saturation issues and protect the value of their licenses. And, of course, no one wants to deal with excessive competition, so the state treats these licenses like viable secondary market substitute goods. When the OLCC begins issuing new licenses, the value of previously issued licenses drops from $20,000, $30,000, or $40,000 to $0.
Oregon now has only one industry association: CIAO. The CIAO board president is responsible for the payroll of the state's largest retailer. Big retailers have always driven Oregon's cannabis policy, for better or worse. But this is something that everyone probably agrees on. To be honest, I don't have much energy for other things these days. In particular, the right to grow intoxicating cannabis products of questionable legality under federal law.
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