Compliance Challenges for THCA Flower in a Shifting Cannabis Landscape

THCA flower sits at the center of one of the hemp industry’s most contentious legal debates. As Charles Alovisetti and Jack Crain of Vicente LLP explain, THCA flower is marketed as federally legal hemp, even though it looks, smells, and functions like marijuana. Its legality turns on the 2018 Farm Bill’s definition of hemp, which measures only delta-9 THC levels and not tetrahydrocannabinolic acid (THCA). Because THCA converts to THC when heated, the distinction is legal rather than practical.

Compliance risks begin with testing. Under federal rules, hemp must pass pre-harvest testing that calculates “total THC” by including THCA. If it passes, however, there is no federal requirement for post-harvest testing, leaving a gap that has fueled industry growth. Certificates of Analysis (COAs) remain the primary compliance tool, but their reliability varies, and states apply inconsistent oversight. 

This patchwork extends to final-form product testing: while some states restrict or ban THCA flower outright, others impose minimal requirements, creating an uneven playing field for multi-state operators.

The controversy has also reached federal agencies and courts. The FDA has taken the position that intoxicating hemp products are not approved for human consumption under the Food, Drug, and Cosmetic Act, while the IRS may apply Section 280E tax penalties if products test above the federal threshold. Courts, meanwhile, have issued conflicting rulings on employment, insurance, and product disputes.

For compliance professionals, THCA flower remains a legally fragile product. Until Congress redefines hemp, likely through the 2025 Farm Bill, operators must navigate inconsistent state rules, uncertain enforcement, and significant tax exposure.