Category: Cannabis

Budding Possibility

Credit: Victor Moussa
Issues to be aware of before marketing THCa hemp flower
By Rod Kight
As a cannabis lawyer, I represent lots of companies in the U.S. hemp industry, and I am routinely asked legal questions about new and novel products. I am currently receiving lots of calls about “THCa flower.” In this article, I will discuss THCa flower and several legal and practical issues regarding it.
What is THCa flower?
THCa flower refers to cannabis buds marketed as hemp. These buds are intended for smoking or vaping. They contain high concentrations of tetrahydrocannabinolic acid (THCa) and low concentrations of delta-9 THC (D9). Specifically, their D9 levels do not exceed 0.3 percent by dry weight, which is the legal limit for hemp under the 2018 Farm Bill. For example, I recently viewed a certificate of analysis of THCa flower that showed 25 percent THCa and 0.18 percent D9. This is remarkable. Despite the fact that this cannabis flower is federally lawful hemp, smoking it will get you very high. In fact, cannabis flowers with high THCa/low D9 ratios are exactly what is being sold as marijuana in states that have legalized it. Although some marijuana strains contain D9 in levels that exceed 0.3 percent, many strains do not. This means that they are technically “hemp” under federal law. In other words, THCa hemp flower is no different from much of the marijuana flower currently sold in medical and recreational marijuana dispensaries in states with regulated marijuana markets.
Rod Kight
Is THCa flower legal?
The short answer is “yes,” at least under federal law and the laws of some states.The idea that there are legal hemp buds that are no different from illegal marijuana buds seems counterintuitive, but proving that this is true involves a very straightforward analysis. The 2018 Farm Bill distinguishes legal hemp from illegal marijuana solely by reference to its D9 levels. Specifically, hemp is cannabis with no more than 0.3 percent D9 by dry weight. A hemp bud with THCa levels of 20 percent and D9 levels of 0.15 percent falls squarely within the 2018 Farm Bill’s definition of “hemp” and is legal under federal law.
In fact, the Drug Enforcement Administration (DEA) has specifically stated on multiple occasions that cannabis material meeting this definition is lawful. In a Jan. 6, 2022, letter, the DEA stated: “Material that is derived or extracted from the cannabis plant, such as tissue culture and any other genetic material that has a delta-9 tetrahydrocannabinol concentration of no more than 0.3 percent on a dry weight basis, meets the legal definition of ‘hemp’ and is thus not controlled under the CSA.” This was not the first time the DEA confirmed that the sole factor distinguishing lawful hemp from unlawful marijuana is its D9 concentration. In addition to confirming this standard in both a letter to the Alabama Board of Pharmacy and a public statement to the Florida Department of Agriculture and Consumer Services, the DEA’s Interim Final Rule regarding hemp states that marijuana is limited “to only include cannabis or cannabis-derived material that contain more than 0.3 percent delta-9-tetrahydrocannabinol (also known as D9-THC) on a dry weight basis.”
In summary, harvested cannabis flower with D9 concentrations not exceeding 0.3 percent meets the legal definition of “hemp” and is not controlled under federal law, regardless of its THCa levels. It is important to note that this only applies to harvested cannabis material. The U.S. Department of Agriculture (USDA) controls hemp production, and its regulations require a test that accounts for both THCa and D9 before the hemp can be harvested, commonly referred to as a “total THC” test.
What are the major legal issues with THCa flower?
Although THCa hemp flower is lawful under federal law, there are some important issues and considerations to be aware of. The rest of this article will discuss these issues.
Is it possible to grow compliant THCa flower?
One issue is whether THCa flower, at least with the high THCa concentrations discussed at the beginning of this article, can come from hemp grown in compliance with the USDA’s pre-harvest testing requirements. Through my research and discussions with clients, I have been made to understand that it is difficult, though possible, to obtain THCa hemp flower from hemp that passed the USDA’s pre-harvest tests. Additionally, it is important to note that the DEA considers all cannabis material with D9 levels not exceeding 0.3 percent by dry weight to be lawful “hemp” regardless of whether or not it was grown by a licensed hemp producer and/or if it passed a USDA total THC pre-harvest test. This conflict between the USDA and the DEA is an unsettled area of law, though it is clear that the USDA’s regulation of hemp terminates upon harvest.
What about state laws?
Another issue is whether THCa flower is lawful under state law. The answer depends on the state in question. It is clear that you can lawfully transport THCa flower through a state regardless of its hemp laws. This is because the 2018 Farm Bill states: “[N]o state or Indian Tribe shall prohibit the transportation or shipment of hemp or hemp products produced in accordance with subtitle G of the Agricultural Marketing Act of 1946 (as added by section 10113) through the state or the territory of the Indian Tribe as applicable.” But individual states may restrict or even downright prohibit it. Although THCa flower is lawful in many states, it is prohibited in others. For instance, some states restrict all hemp that is intended for smoking, which includes THCa flower. Some states allow smokable hemp but prohibit THCa flower based on their requirement that hemp pass both a pre-harvest and post-harvest “total THC” test. Additionally, the legal status of THCa flower in some states can be tricky to determine due to the way that their hemp laws and regulations are written.
In summary, the laws and regulations of a given state determine the extent to which THCa flower is lawful. State laws vary, and the legal status of THCa flower can sometimes be difficult to determine. This leads to a final issue: confusion and misunderstanding of hemp laws.
What if THCa is lawful in my state but law enforcement disagrees?
A final issue to consider is confusion by law enforcement and state regulators about the legal status of THCa flower. Many people in the hemp industry contend that hemp flower is only lawful if it passes a “total THC” test, which accounts for both THCa and D9. Although this is correct for hemp that has not been harvested, it is wrong under federal law and the laws of many states for harvested cannabis material. Given that this issue is confusing even to experienced hemp industry participants, you can imagine its misunderstanding is compounded by law enforcement and even regulators, many of whom do not know or care much about (or for) hemp. In practice, this means that someone lawfully selling THCa flower may experience problems, including prosecution, from law enforcement.
Conclusion
THCa flower is poised to be the “next big thing” in the hemp industry. Based on the feedback I am receiving, I believe that it will be very popular in much of the country. As discussed above, THCa flower is lawful under federal law and the laws of some states. However, before deciding to participate in the emerging THCa flower market, it is very important to understand the issues and risks involved.
Important Note: This article is not intended to be legal advice and should not be used as such. The matters discussed are novel and involve complicated and unsettled legal issues. Before making any decisions regarding THCa, you should first consult with an experienced attorney.

Credit: Cavan
December 24, 2022
Newfoundland Reverses 2019 Ban on Cannabis Vapes
Credit: ATDR
The government of the Canadian province of Newfoundland and Labrador has reversed its late-2019 ban on sales of cannabis vape products.
The decision to carry vape products followed a review of Newfoundland’s cannabis industry by the provincial government and the Newfoundland Labrador Liquor Corp. (NLC), the province’s adult-use cannabis regulator and wholesaler, according to its chief merchandising officer, Peter Murphy, reports MJ Biz Daily.
The change opens a new, albeit limited, market for vapes: Newfoundland was the second-smallest cannabis market among Canada’s 10 provinces in September, with regulated recreational marijuana sales worth 5.7 million Canadian dollars ($4.2 million), or about 1.5 percent of Canadian cannabis sales.
Quebec’s government-owned recreational cannabis monopoly, Société québécoise du cannabis (SQDC), still does not sell vapes.
December 2, 2022
Maryland, Missouri Approve Recreational Marijuana

Several states had recreational marijuana on the ballot. Maryland and Missouri became the 20th and 21st states to legalize marijuana for adult recreational use on Tuesday, but cannabis reform efforts met defeat in Arkansas, North Dakota and South Dakota.
Maryland voters approve a constitutional amendment that legalizes recreational marijuana for people 21 and older. It will go into effect on July 1, 2023, and allow possession of 1.5 ounces or two plants. Possession of small amounts of marijuana was already decriminalized in Maryland. Under the amendment, those previously convicted of cannabis possession and intent to distribute will be able to apply for record expungement, according to media reports.
Missouri voters ended prohibitions on marijuana in the state and allow personal use for those over the age of 21. It will allow for personal possession up to three ounces and allow individuals with marijuana-related non-violent offenses to petition for release from prison or parole and probation and have their records expunged.
North Dakota voters rejected a citizen-initiated ballot measure that aimed at allowing the use of marijuana in “various forms” for those who are at least 21 years-old. It would have allowed marijuana possession of up to an ounce and all marijuana to be tested in a facility “for the potency of products and the presence of pesticides” and subject to random inspection.
South Dakotans rejected legalizing cannabis in the state, too. Legalization for recreational marijuana use had passed in South Dakota in 2020, but the results were nullified by state courts. According to the proposed 2022 ballot measure, marijuana possession of up to an ounce would have been legal. It also would have legalized possession of marijuana paraphernalia, use and distribution.
Additionally, Arkansas voters rejected a constitutional amendment that would have allowed cannabis possession and recreational consumption by adults as well as the sale by licensed facilities. Had it passed, cannabis possession of up to an ounce would have been legal and some tax revenue from marijuana sales would have contributed to funding law enforcement.
November 9, 2022
Several States set to Vote on Recreational Marijuana

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Recreational marijuana legalization is on the ballot in Arkansas, Maryland, Missouri, North Dakota and South Dakota next week.
If approved, the states would join the 19 (along with Washington, DC) where recreational use is currently legal. Thirty-seven states, three territories and the District of Columbia allow the medical use of marijuana products, according to the National Conference of State Legislatures.
Medical marijuana is currently legal in each of the five states that will vote on recreational use on Tuesday.
Marijuana is illegal under federal law, even as individual states have moved toward legal use for recreational and medical purposes.
But in October, the Biden administration announced that President Joe Biden pardoned all people convicted of federal marijuana possession through executive action.
Leaders in the U.S. Senate introduced sweeping legislation earlier this year that would end federal prohibitions on marijuana more than 50 years after Congress made the drug illegal.
November 4, 2022
Germany Readies to Legalize Recreational Cannabis

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Germany set out plans this week to legalize cannabis, a move Chancellor Olaf Scholz’s government said would make Germany one of the first countries in Europe to make the move. Last year, German leaders announced an agreement for recreational cannabis.
Health Minister Karl Lauterbach presented a cornerstone paper on planned legislation to regulate the controlled distribution and consumption of cannabis for recreational purposes among adults.
Acquiring and possessing 20 to 30 grams of recreational cannabis for personal consumption would also be made legal.
The coalition government struck an agreement last year to introduce legislation during its four-year term to allow the controlled distribution of cannabis in licensed shops.
Lauterbach did not give a timeline for the plan, according to Reuters.
Many countries of the region have already legalized cannabis for limited medicinal purposes, including Germany since 2017. Others have decriminalized its general use, while stopping short of making it legal.
According to the paper, private self-cultivation would be permitted to a limited extent. Ongoing investigations and criminal proceedings connected to cases no longer illegal would be terminated.
The government will also introduce a special consumption tax, and develop cannabis-related education and abuse prevention programs.
Legalizing cannabis could bring Germany annual tax revenues and cost savings of about 4.7 billion euros ($4.7 billion) and create 27,000 new jobs, a survey found last year.
Some 4 million people consumed cannabis in Germany last year, 25 percent of whom were between ages 18 and 24, Lauterbach said, adding the legalization would squeeze out the cannabis black market.
Germany will present the paper to the European Commission for pre-assessment and will only draft a law once the Commission approves the plan, the minister added.
“If the EU Commission says no to Germany’s current approach, our government should seek alternative solutions. Not just say: Well, we tried our best,” said Niklas Kouparanis, chief executive Bloomwell Group, one of Germany’s largest cannabis firms.
Berlin should have a plan B if the EU rejects the legalization, Kouparanis said, adding that cannabis imports should be permitted as domestic cultivation will not be able to meet demand in the short term.
The decision has already stirred a mix of reactions across Europe’s biggest economy.
Germany’s pharmacists association warned of the health risks of legalizing cannabis and said it would put pharmacies in medical conflict.
Pharmacists are health care professionals, so “a possible competitive situation with purely commercial providers is viewed particularly critically,” Thomas Preis, head of the North Rhine Pharmacists’ Association, told the Rheinische Post newspaper.
The legalization plan has not been welcomed by all federal states. Bavaria’s health minister, for instance, warned that Germany should not become a drug tourism destination in Europe.
But Germany’s Greens said decades of prohibiting cannabis have only exacerbated the risks.
“Because too-restrictive conditions for the legal market only promote the black market for particularly strong cannabis,” lawmaker Kirsten Kappert-Gonther said on Wednesday.
Lars Mueller, chief executive of German cannabis firm SynBiotic, said Wednesday’s step was “almost like winning the lottery” for his company.
“When the time comes, we will be able to offer franchise-like models for cannabis stores in addition to our own stores,” Mueller said.
October 28, 2022
BAT Joins Snoop Dogg in Cannabis Firm Investment

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BAT, via one of its wholly owned group companies, has acquired a noncontrolling minority stake in Sanity Group, one of Germany’s leading cannabis companies.
This investment is complementary to other recent investments made by BAT companies, most notably the strategic R&D collaboration established with Canada’s Organigram Holdings announced in March last year.
Sanity Group, which is based in Berlin, produces CBD consumer brands and medical cannabis brands. It also has a proven track record in the research, development and marketing of cannabis products.
“Investing in Sanity Group is another example of BAT’s ongoing work to explore numerous areas beyond nicotine, positioning BAT for future portfolio growth across a range of categories and geographies,” said Kingsley Wheaton, chief growth officer at BAT, in a statement.
“We continue to transform our business through better understanding of our current and future consumers as part of our ‘A Better Tomorrow’ purpose.”
Sanity secured $37.6 million in the BAT-led Series B funding round, according to Sanity founder and CEO Finn Age Hansel. About half of the funding will go toward strengthening Sanity’s medical business. The rest of the funding will go toward preparing for the possible legalization of recreational marijuana in Germany.
Germany has not legalized recreational cannabis yet, but action is expected sooner rather than later. Germany’s coalition government is “working actively on it and really want[s] to come to a good draft of the law by the end of this year,” Hansel said. “This is really a priority topic for the government.”
“This funding is an important milestone for us and a strong signal toward the future of cannabis in Germany and Europe,” said Max Narr, chief investment officer at Sanity Group. “Against the backdrop of a challenging global economy, we are proud to have achieved a funding round of this magnitude.”
September 26, 2022
Btomorrow Invests in Kanvas’ Vaporizer Technology

Photo: By Olivier Le Moal
BAT’s corporate venturing unit, Btomorrow Ventures (BTV), has invested an undisclosed amount in the Kanvas Co., a developer of patented electronic vaporizer technology solutions.
The investment will fuel the research, development and growth necessary to commercialize Kanvas’ proprietary Vapetelligence technology platform and further enable scalability of its products, which are designed to promote device safety in electronic vaporizers and regulated marketplaces globally.
“Kanvas is excited to work with BTV as a strategic investor to advance the commercialization of our unique IP portfolio and technology platform, focusing on our patented and temperature-controlled dosing technology and hardware that provides a secure and controlled delivery system for brands,” said Andy Fathollahi, CEO of Kanvas, in a statement.
“Kanvas’ pioneering innovations will be a catalyst for brands to support better, safer consumer experiences through integrating higher quality software and smart-chip technology.”
“BTV is thrilled to support Kanvas. With its innovative product proposition, strong management team and now strategic partnership with BAT, we believe the company is poised for success, and we welcome it to BTV’s portfolio,” said Lukasz Garbowski, BTV investment director.
Kanvas has a diverse portfolio of patents in technology, software and hardware products to offer brands a comprehensive suite of premium solutions for electronic CBD, cannabis and nicotine-delivery systems.
September 7, 2022
SEC Investigating Ignite International for Fraud

Dan Bilzerian (right), owner of the cannabis company Ignite
A cannabis company led by social-media influencer Dan Bilzerian is under investigation by the U.S. Securities and Exchange Commission (SEC).
The agency issued a litigation release earlier this week, noting that it “has filed an action against Ignite International Brands, Ltd., a publicly traded company based in Ontario, Canada, seeking an order directing it to comply with an investigative subpoena for documents.”
Among other things, the SEC is investigating whether the Markham, Ont.-headquartered company violated the federal securities laws by making false or misleading statements in reporting its 2020 financial results.
The company has failed to produce requested documents, despite multiple accommodations from SEC staff, according to the release.
“The SEC is continuing its fact-finding investigation and, to date, has not concluded that any individual or entity has violated the federal securities laws,” the release adds.
The company, which sells a line of cannabis and CBD products, such as CBD-infused toothpicks, reportedly lost $67 million in 2019 and stayed afloat by raising money via debt and selling shares of the company’s stock, according to The Growth Op.
The company recently went private but was previously traded on the Canadian Securities Exchange under the ticker “BILZ.” In 2020, the company was trading for around 94 cents a share, down from a high of more than $5.
Last year, the company announced it was pulling out of the Canadian marijuana market, citing “too many barriers” to build a successful cannabis business.
“The government’s excessive restrictions of the marketing, sales and distribution of products has diminished the business opportunity while simultaneously making the consumer experience less than optimal,” Bilzerian said at the time.
During a shareholders meeting held on Aug. 24, 2022, Ignite shareholders approved a resolution to go private that was announced on July 19, 2022, and that the going private transaction has been completed, according to a press release.
September 1, 2022
Study: Cannabis Users More Likely to Use Nicotine

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Medicinal cannabis users are more prone to consume nicotine products than the general population, according to a recent study.
The study, published in the American Journal on Addictions, is among the first to examine nicotine use among patients of a medical marijuana dispensary, according to a release from Rutgers University.
“Simultaneous use of cannabis and nicotine is a growing concern, but while the relationship between recreational cannabis and nicotine use is well-established, little is known about nicotine use among users of medical cannabis,” said Mary Bridgeman, a clinical professor at Rutgers Ernest Mario School of Pharmacy.
The researchers surveyed 697 patients between ages 18 and 89 at a medical marijuana dispensary on their nicotine and cannabis use, how they self-administered the cannabis (smoked, vaped) and the medical conditions that qualified them for using therapeutic cannabis.
They found that close to 40 percent of medical marijuana users also use nicotine – sharply higher than the 14 percent of U.S. adults who smoke.
Therapeutic cannabis users who also used e-cigarettes or didn’t use nicotine at all were about four times more likely to vape, rather than smoke, cannabis than those who exclusively smoked cigarettes.
The study also found that 75 percent of the respondents smoked cannabis rather than vaped and about 80 percent of the cigarette smokers reported planning to quit in the next six months.
“These findings reveal that while medical cannabis dispensaries may recommend vaping rather than smoking cannabis due to the health concerns associated with combustible products, this recommendation alone may not influence patients who also smoke cigarettes,” said co-author Marc Steinberg, author of the study and a professor in the department of psychiatry at Rutgers Robert Wood Johnson Medical School.
“Between the higher rates of nicotine use in those using medical cannabis, the fact that cigarette smokers opt to smoke cannabis as well and that those people also are seeking to quit using nicotine presents a strong argument that dispensaries provide tobacco control messaging at the point-of-sale to encourage cigarette smokers to quit,” Steinberg added. “The strategy also could increase the chances that a medical cannabis user would vape the product, which is a less harmful route than smoking.”
September 1, 2022
US Poll Shows Marijuana Use Tops Tobacco for First Time

Credit: Martijn Baudoin
A landmark poll in the U.S. has shown that marijuana use is greater than tobacco for the first time. The recently released Gallup poll showed that 16 percent of Americans said they smoked marijuana, compared to 11 percent who had smoked tobacco in the past week.
For comparison, a Gallup poll from the year 1969 showed that at that time, just four percent of Americans admitted they had even tried marijuana – compared to 48 percent today. But polling data from that same year revealed 40 percent of Americans had smoked tobacco cigarettes in the past week – and that number was the lowest recorded by Gallup on that issue between 1944 and 1972.
Marjiuana and tobacco usage trends have been going in opposite directions for a few decades now. By 1985, nearly as many Americans said they had tried marijuana (33 percent) as had smoked a cigarette in the past week (35 percent), according to News9.
Cigarette smoking has been declining ever since. By 2013, just 19 percent of Americans were smoking cigarettes at least once a week. The trend toward more marijuana smokers is driven by young people.
The National Institutes of Health reported last week that more young adults used marijuana in 2021 than in any year prior. Nearly a third (30 percent) of adult respondents under the age of 35 admitted to Gallup this year that they smoke marijuana. That’s significantly higher than those aged 35-54 (16 percent) or 55-plus (seven percent).
And just eight percent of adults under 35 are smoking cigarettes at least once a week. Slightly more adults aged 35-54 (10 percent) or 55-plus (14 percent) said they had.
The higher rates of marijuana smoking come with major political implications. A record high percentage of Americans (over two-thirds, per Gallup) say they favor legalization of recreational marijuana.
August 30, 2022