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SIOUX FALLS, S.D. (KELO) — In 2020, the voters of South Dakota opted to legalize both medical and recreational marijuana. However, a lawsuit rolled back the recreational side of that vote, and then in 2022, recreational marijuana failed to garner the votes needed to pass into law. The issue will likely be back on the ballot in 2024, but there are concerns recreational marijuana is already here in the form of THCa.
THCa products are available on the retail market in South Dakota to any individual over the age of 21 who happens to live near where they are sold. These products do not need to be sold in a dispensary, and are available in a variety of smoke shops across the state and even online.
Glossary of terms:
Cannabis: Cannabis is a genus of the flowering plant Cannabaceae. When you think of the plants that are referred to as marijuana and hemp, you are thinking of cannabis. All marijuana and hemp plants are cannabis.
Hemp: Hemp is a form of cannabis which is often used for the manufacturing of textiles and other materials. It is also used to produce CBD products. Hemp with a THC content under 0.3% is legal to grow in the U.S. under federal law and is often referred to as industrial hemp.
Marijuana: Marijuana is another word for cannabis. The term marijuana is used to describe cannabis plants that can be consumed as a psychoactive substance. Marijuana is also referred to in terms such as pot and weed. It’s the stuff you smoke and get high from.
THC: THC, short for tetrahydrocannabinol, is the primary compound in cannabis that is responsible for its psychoactive effects.
THCa: THCa, short for tetrahydrocannabinolic acid, is a non-intoxicating compound in the cannabis plant. It is the precursor to THC in the plant, and slowly converts to THC as the plant matures.
Cannabinoids: Cannabinoids are compounds within the cannabis plant that interact with receptors within the body’s endocannabinoid system. Examples of cannabinoids include, but are not limited to, THC, CBD, Delta-8 THC and THCa.
Delta-9 THC: Delta-9 THC is the most abundant form of THC found in the cannabis, and is responsible for it’s psychoactive effects. When people refer to THC, this is most often what they are referring to.
Delta-8 THC: Delta-8 THC is a compound found in trace amounts in a cannabis plant. It is less potent than Delta-9 THC, and can be produced from hemp. It can be intoxicating, though it is less potent than “marijuana”.
CBD: CBD is short for cannabidiol, and it is a non-intoxicating compound found in the cannabis plant. It is often sold in products advertising medicinal properties such as tinctures, salves, oils and more for pain relief, anxiety and seizures.
Decarboxylation: Decarboxylation is a chemical reaction, which activates cannabinoids. Putting it simply, decarboxylation is the process of heating something. When dealing with cannabis, this can be done in a variety of ways, including an oven, heating coils in a vaporizer, or with a flame from a lighter or match.
But what exactly is THCa, and how is it different than THC?
“First we need to understand that there are compounds in the cannabis plant,” Tim Southern, Director of the Public Health Lab at the South Dakota Department of Health (DOH), said.
“Cannabis can either be characterized as hemp or marijuana based on the amount of Delta-9 THC,” continued Southern. “Some compounds in the cannabis plant can be psychoactive — others are not psychoactive.”
An example of a compound found in the cannabis plant that is not psychoactive — ie. will not get you high — is CBD, Southern explained. “CBD exists in the acidic form CBDa,” he said “and through a process of decarboxylation — it removes a very small group; it’s a carbon, two oxygens and a hydrogen are removed from that parent compound and it creates CBD.”
Southern used the examples of CBDa and CBD to highlight the way that compounds in cannabis can be structurally changed.
“Delta-9 is the compound that everybody likes to talk about, because it’s how the Farm Bill describes legal limits of the intoxicating substance Delta-9 THC that helps us differentiate hemp from marijuana,” Southern said.
Delta-9 THCa exists in the [cannabis] plant, and through the process of decarboxylation (heating it), it is converted into Delta-9 THC. “THCa is not psychoactive — it does not have any inherent intoxicating effect,” said Southern, “but when heat is added to Delta-9 THCa — you end up with that intoxicating compound [THC].”
According to Southern, the conversion of THCa to THC by way of the manners of decarboxylation that are most common for those consuming these products — burning them in a pipe, joint or other manner — is fairly efficient.
“It depends on the efficiency of the reaction that converts the THCa to THC,” said Southern, delving into the weeds. “When you smoke a product, it is a very efficient conversion reaction where the THCa will almost completely convert into THC.”
Southern went on to clarify that just because a product may advertise 20% THCa, it doesn’t necessarily mean that you will get 20% THC. “It’s a matter of efficiency, but in the laboratory when we test products, we use a variety of different methods — we can get almost 100% conversion from the acid to the non-acid from,” he said.
The argument for the legality of THCa products is that they are legal to sell due to the redefinition of hemp in the Farm Bill. This piece of federal legislation removed hemp, which it defined as cannabis and its derivatives which have less than 0.3% THC on a dry weight basis, from the definition of marijuana in the Controlled Substances Act.
In a 2021 announcement, the USDA, which oversees hemp regulation, issued a final rule, which clarified that total THC should be determined as the combined total of Delta-9 THC and THCa in a product.
South Dakota law mirrors this language. According to the definitions section of SDCL 38-35 — the industrial hemp laws — “Total delta-9 THC,” is the “value determined after the process of decarboxylation, or the application of a conversion factor if the testing methodology does not include decarboxylation, that expresses the potential total delta-9 tetrahydrocannabinol content derived from the sum of the THC and THCA content and reported on a dry weight basis.“
Essentially, this is saying that under South Dakota law, total Delta-9 THC content includes the combined total of Delta-9 THC and THCa.
So under both federal and state law, hemp products, including THCa products, must have no more than 0.3% combined THC and THCa in them. So how do we wind up with products being sold that are over 20% THCa?
KELOLAND News was provided with testing results for a THCa product purchased in a Sioux Falls store in 2024 which indeed had a total THC content of over 21%. This product in question, “Oreoz” THCa flower, came back with a total combined dry weight THC of 21.207% — about 70% the legal limit.
This test was carried out by Cannabis Chem Lab, which at the time was the only licensed South Dakota testing company, who conducted the tests for a business person within the South Dakota medical marijuana industry who bought the products and then provided the results to KELOLAND News.
To put this in perspective, a search of the products available on the websites of any given South Dakota medical dispensary will turn up many examples of marijuana with a THC percentage in the range of 18-30%.
We questioned Southern about how this product falls within state law, asking him if a THCa product would still need to be under 0.3% total combined THC to be legal in South Dakota.
“Absolutely. That is without question,” said Southern. “There is no amount of conversion of Delta-9 THCa to THC that can bring that value over the .3% — then it is considered marijuana.”
So, these products are illegal, and based on the definitions within both state law and USDA rules, they are likely illegal on both a state and federal level.
So how does it get to market?
“When the Farm Bill defined hemp and marijuana, they did it on the basis of their knowledge of a single intoxicating compound, which is Delta-9,” Southern said. “The [hemp] industry is very creative — and not only the industry, but our knowledge of cannabis and the many compounds in that plant is growing.”
That creativity has manifested in this field by finding a loophole in the USDA process for regulating hemp products.
Under USDA guidelines, samples of the hemp plant to test for THC levels must be taken before the plant is harvested, and the harvest of the plants must be completed within 30-days of the samples being collected.
It is also important to note that while the USDA requires testing for THC content prior to harvest, it does not require testing afterward.
Cannabis is a quick-growing plant, with some going from germination to harvest in as little as 3 months. Different strains of cannabis plants produce differing levels of compounds at different times stages of their growth.
What this — paired with the 30-day testing-to-harvest window — means is that a grower can select for plants which early on in their flowering stage present low amounts of THC and THCa. They are able to send in these samples early on, and then allow the plants to continue to mature for an additional 3-4 weeks before harvesting them, in which time the levels of THCa present in the plant can increase drastically.
This means that while the samples of the lot sent to the USDA may fall below the level of 0.3% total THC, the actual plants, harvested weeks later, can be much more potent.
These plants then turn into products sold on the retail market, which are indeed advertised as having high levels of THCa, despite such levels violating state law.
While this may seem like a pretty simple matter of identification, enforcement of that state law has not been happening in South Dakota.
Some of that may come down to the sheer complexity of the issue. Southern clarified that when we look at the issue of these different compounds, we are talking in terms of advanced chemistry.
“We’re talking about two very different types of products — hemp and marijuana,” said Southern, going on to emphasize the relative youth of the industry.
“I think the industry is very young, and I think what we know about the cannabis plant — due to the moratorium on research for the better part of a half-century — has also influenced where we are now,” said Southern. “Our knowledge of all the various compounds that naturally occur in the cannabis plant — it’s increasing exponentially; weekly; monthly. Year over year we’re learning more.”
KELOLAND News reached out to the Sioux Falls Police Department (SFPD), seeking to talk with them about the challenges of attempting to enforce laws on a complicated and constantly developing subject.
SFPD declined to speak on the subject, with a spokesperson telling KELOLAND News that “[t]he Sioux Falls Crime Lab does not have the capability to do this type of drug testing,” and referring us to state-level agencies including the DOH and the Office of the Attorney General.
Having already consulted with Southern at the DOH, we sought out Attorney General Marty Jackley, who sat for an interview on the matter.
“At this time hemp is a very important agricultural product for South Dakota. We’re actually second in the nation for both hemp grain and hemp fiber production,” began Jackley, addressing the subject. “Recognizing that, the drug dealers are trying to find ways — to market the illicit drugs.”
One area where THCa hemp products differ from their marijuana counterparts is the ability to transport them across state lines.
The interstate transport of marijuana, even between two states with full recreational programs such as Oregon and California, is technically a federal crime. While this may not be a priority for federal authorities, it still prevents cannabis companies in one state from providing product to businesses in another state — usually.
Meanwhile, hemp products which are under 0.3% THC (or were at the time of testing) are able to be moved freely from state to state under the letter of the Farm Bill.
This means that the THCa products sold in South Dakota are not necessarily coming from South Dakota.
“There’s been no reports or no cases regarding South Dakota manufacturers mislabeling hemp products,” said Jackley. “These products are coming from other states, but they are coming into our state.”
At this time, Jackley indicated that his office will not be pursuing enforcement of the state’s law on this matter.
“The drug dealers are using some federal law to preempt state law,” said Jackley. “What I mean by that is there are some federal courts that have taken the position that because of the Farm Bill in 2018, state authorities are not able to regulate the illegal use of THC and some of the hemp products that we’re seeing.”
Essentially, Jackley expressed that the retail sale of THCa products would go more or less unaddressed due to the threat of legal precedent.
“What is happening is that in certain courts — and this hasn’t happened in South Dakota — the courts have indicated that states that are attempting to protect children and regulate certain levels of hemp for intoxication purposes would be stopped by the 2018 Farm Bill,” said Jackley.
Jackley says he does not necessarily agree with the courts that have made this decision, indicating he thinks the state could enforce its own hemp laws, but he doesn’t want to test it either. “It’s certainly creating some precedents,” he said.
To put it simply, Jackley acknowledged that the state of South Dakota could attempt to prosecute the sale of these THCa products, but there is fear that if the enforcement was challenged in the courts, the state could lose.
Due to this concern, Jackley says that the fix for the loophole lies with the federal Congress, and not with the states. “That can be fixed really easily in the Farm Bill,” he said.
Emphasizing the belief that the responsibility lies with the federal government, Jackley joined a bi-partisan group of 20 other Attorneys General in signing a letter calling on Congress to address the issue of intoxicating hemp products.
Speaking to why this loophole exists, Jackley’s words echoed those of Southern.
“I don’t think anybody in Congress necessarily believed when they passed the 2018 Farm Bill, they were saying it’s okay to have drug dealers manufacture dangerous drugs out of hemp,” Jackley said.
As to the danger of THCa products, it is worth noting once more that THCa is a naturally occurring compound. In practice, the product is no different than the marijuana one would buy in a medical dispensary in South Dakota or a recreational dispensary in another state.
The main difference between these THCa products and the products in those dispensaries — and where the potential for danger arises — is in the lack of regulation.
The product that was tested above was a THCa product with came back with a total THC content of over 20%, but potency was not the only thing that it was tested for.
The full panel tested the product in question for many other things, such as heavy metals, mycotoxins and residual pesticides. The product fortunately passed in all these categories, but it did fail in another: microbial impurities.
Ultimately, the product tested failed in the category of total yeast/mold, returning a level more than twice the regulatory limit in this category.
“Yeasts and molds are naturally occurring, but what we want to see are low total counts,” said Southern. “We want to ensure that individuals aren’t going to use a product — and then suffer some infection or a complication due to a contaminant.”
While some of these THCa products do undergo testing for these categories before sale, Southern warns that, especially in the categories of yeast and mold, there isn’t much consistency in how these test results are used.
“Some jurisdictions say it’s a failed product; you have to remediate,” Southern explained. “Some jurisdictions say [testing] is there to advise the end user that there could be higher concentrations of yeast and mold in this product, and that the end user must decide for themselves whether or not they want to take the risk and use the product.”
With these concerns in mind, the situation is thus:
These products, legal or not, are currently on the market and available to purchase. They are naturally produced, but with limited regulation and oversight when it comes to health.
How should we, as potential consumers, approach the issue?
Southern gave his advice.
“I would say it is the right of the end user to say ‘please produce the certificate of analysis (the testing results that each product should have),’” started Southern. “I also want to know if the compounds in this product are natural or if they’re artificial. Have they been made somewhere else and put in this natural product?”
At this time, it seems that these products will remain on the market, and that it is the role of the consumer to take their health and safety into their own hands — making as informed a decision as possible on the purchases they make — and assuming the potential risk as well.
Note: Left out of this story is the subject of HB 1125, a bill brought in the South Dakota legislature and signed by the Governor in March of 2024. The final version of this bill, brought by Republican Rep. Brian Mulder, will seek to ban the sale of chemically derived cannabis products in South Dakota.
These, according to the language of the bill, include Delta-8-THCO, Delta-10 THCO, Delta-9-THCO, HHCO and THCPO.
As a gross oversimplification, these products are ones in which existing compounds are chemically modified through a process of acetylation, increasing their potency. While these products are tangentially related to THCa products, it is the opinion of this story’s author that HB 1125 would not impact THCa products, as they are not chemically derived or modified.
This is why the discussion of HB 1125 has been left out of the above piece.
