Legal Status of THCa & Federal Trademarks

The cannabis industry is a rapidly evolving landscape, with laws and regulations constantly shifting in response to scientific discoveries, public sentiment, and legal challenges. Among the many cannabinoids found in the cannabis plant, Delta-9 tetrahydrocannabinol (Delta-9 THC) and tetrahydrocannabinolic acid (THCa) have been subjects of much discussion and curiosity. In this article, we will delve into the legalities surrounding hemp products containing these cannabinoids, with a special focus on the U.S. federal law.

The Distinction Between Delta-9 THC and THCa

Before diving into the legal intricacies, it’s essential to understand the science. The cannabis plant boasts numerous cannabinoids, chemical compounds that interact with our body’s endocannabinoid system. Among these, Delta-9 THC and THCa have garnered significant attention.

While many are familiar with Delta-9 THC, the primary psychoactive compound in cannabis, its acidic precursor, THCa, might be less recognized. THCa is non-psychoactive and naturally occurs in the cannabis plant. It only becomes the psychoactive Delta-9 THC when heated, a process known as decarboxylation.

Isomers play a crucial role in this conversation. An isomer in chemistry is a molecule that has the same number of atoms as another molecule but with a different arrangement of atoms. There are dozens of THC isomers. However, federal law is primarily concerned with Delta-9 THC when determining a cannabis product’s legality.

Note, while the concentration of THCa is not relevant in determining the legal status of harvested hemp or hemp products, it is relevant in determining the legal status of hemp that has not been harvested. This is because USDA regulations require hemp to be tested for delta-9 THC using a “post- decarboxylation method” before it can be harvested. Because THCa converts to delta-9 THC when decarboxylated the THCa concentration of a pre-harvest hemp sample matters.

Hemp vs. Marijuana: A Delta-9 THC Differentiator

Hemp and marijuana both come from the Cannabis sativa plant but are distinguished primarily based on their Delta-9 THC concentration. If the Delta-9 THC concentration does not exceed 0.3% by dry weight, the cannabis is classified as hemp; if it does, it’s considered marijuana.

The legal distinction is crucial because, at the federal level, hemp and marijuana are treated very differently. Marijuana, due to its psychoactive properties, is a controlled substance, while hemp, on the other hand, is not.

Federal Laws and Acts Governing Hemp

The transition of hemp from a controlled substance to a lawful product is rooted in two essential legislative acts:

• The Agricultural Act of 2014 (2014 Farm Act): This act allowed hemp production under specific state-regulated pilot programs. This was a pivotal step in re-introducing hemp cultivation in the U.S. after decades of prohibition.
• The Agricultural Improvement Act of 2018 (Farm Bill): A landmark legislation that broadly legalized hemp cultivation, processing, and sale across the nation. It explicitly removed hemp and THC in hemp from the controlled substance list, as long as the Delta-9 THC concentration remains below the 0.3% threshold.

In simpler terms, the federal law determines the legality of a cannabis product based solely on its Delta-9 THC concentration, and not on the presence or concentration of any other cannabinoids, including THCa.de

The DEA’s Position on Hemp

The Drug Enforcement Administration (DEA), which is responsible for enforcing the controlled substances laws and regulations in the U.S., has clarified its stance on hemp through various statements and publications:

• Interim Final Rule (IFR): Published in August 2020, the IFR clarified that for any cannabis derivative to qualify as hemp, it must not exceed the 0.3% Delta-9 THC limit. Any product that adheres to this limit is not a Schedule I controlled substance.
• DEA’s Public Statements: Through town hall meetings, response letters, and webinars, the DEA has reiterated that the only controlled substance concerning cannabis is Delta-9 THC when it exceeds the 0.3% limit on a dry-weight basis.

Ninth Circuit Court of Appeals: An Affirmation

The legal standing of hemp and its derivatives was further solidified by a recent decision by the Ninth Circuit Court of Appeals – see AK Futures, LLC v. Boyd St. Distro, LLC, 35 F.4th 682 (9th Cir. 2022. In the context of a trademark dispute involving hemp products, the court emphasized that the Delta-9 THC concentration level is the sole distinguishing factor between controlled marijuana and legal hemp.

The world of hemp and cannabis laws can be intricate and sometimes confusing. But one thing is clear: under U.S. federal law, hemp products, including those that may have THCa concentrations exceeding 0.3%, are not controlled substances as long as their Delta-9 THC concentrations remain within the permissible limits. This understanding offers businesses, consumers, and enthusiasts a clearer path in navigating the world of hemp products, fostering an environment for innovation and growth in this burgeoning industry.

The Federal Trademark Implications for THCa Products in the U.S.

The ability to secure federal trademark registrations is paramount for businesses and entrepreneurs seeking to protect their brand and intellectual property, especially in industries experiencing rapid growth. The hemp industry, particularly products with tetrahydrocannabinolic acid (THCa) and Delta-9 THC concentrations, is one such sector. The U.S. federal law’s delineation of hemp based on its Delta-9 THC concentration impacts the trademark registration process at the U.S. Patent and Trademark Office (USPTO).

Implications for Various Stakeholders

• Businesses: For businesses venturing into the production, processing, or distribution of THCa products with compliant Delta-9 THC levels, the ability to obtain federal trademark protection is a significant advantage. Not only does it offer brand protection against potential infringers, but it also elevates the brand’s credibility in the market, which is invaluable in an industry that is still finding its footing.
• Online Sellers: The digital marketplace is crowded, and the differentiation of products is essential. Securing a federal trademark can offer online sellers the competitive edge needed to stand out. Additionally, it affords protection against counterfeit products or unauthorized sellers leveraging their brand’s reputation.
• Retail Sellers: Brick-and-mortar stores benefit immensely from trademark registrations as it assists in building brand loyalty and trust. Consumers, especially in industries like hemp and cannabis, often look for markers of authenticity and quality. A registered trademark can serve as a badge of such assurance.
• Entrepreneurs: For innovators and creators introducing new THCa products to the market, securing a federal trademark becomes an asset. It can enhance the business’s valuation, attract potential investors, and offer a strategic advantage in both marketing and potential licensing deals.

Potential Caveats and Considerations

While the legal framework seems clear in terms of the distinction between hemp and marijuana based on Delta-9 THC concentration, there are practical considerations that stakeholders must account for:

• Clarity in Product Descriptions: When applying for a trademark, businesses must ensure that the goods’ descriptions are clear about the Delta-9 THC concentrations and compliance with federal law. This can expedite the examination process and reduce potential objections.
• State Laws: It’s crucial to remember that while the federal law offers clarity on the distinction between hemp and marijuana, state laws can vary. Businesses should ensure that they are compliant not only at the federal level but also in all states where their products are sold.
• Ongoing Compliance: Given the rapidly evolving nature of cannabis laws, businesses should be vigilant in ensuring their products remain compliant. Any change in product formulation that results in Delta-9 THC concentrations exceeding the federal limit can jeopardize not only the trademark but also the business’s legal standing.

In conclusion, the demarcation of hemp under U.S. federal law based on its Delta-9 THC concentration has indeed opened doors for various stakeholders in the hemp industry to obtain federal trademark registrations. However, a meticulous approach, cognizant of both federal and state laws, is crucial for success in this promising yet intricate landscape.

Are You Looking For Federal Trademark Assistance?

Navigating the intricate landscape of federal trademark regulations in the cannabis industry demands expertise and precision. Our trademark attorneys are well-versed with the nuances of both the cannabis sector and intellectual property law. Whether you’re a budding entrepreneur or an established enterprise, our team is primed to guide you through every facet of the trademark process, ensuring your brand is protected and poised for success. Don’t leave your brand’s future to chance; contact us today to discuss how we can champion your trademark needs in this dynamic cannabis industry.