In June 2023, the state of Virginia released amendments to Virginia’s food and drink and industrial hemp laws. These laws were supposed to take effect in July 2023, but a group of hemp sellers is suing the state to challenge the new law. The Washington Post reports that the sellers claim the state is illegally banning hemp products that were legalized under the 2018 Farm Bill [1]. They feel the state is pushing them out of a thriving CBD market and putting them at a competitive disadvantage.

Virginia’s Industrial Hemp Law (Va. Code § 3.2-4112 et seq.) and Food and Drink Law (Va. Code § 3.2-5100 et seq.) direct the manufacturing and retail sale of certain hemp-derived products. The new amendments state the following [2]:

  1. Retail hemp products must have less than 0.3% total tetrahydrocannabinol (delta-8-THC + delta-9-THC + THCA) and no more than 2mg total THC per package unless the product’s cannabidiol (CBD) to THC ratio is at least 25 parts CBD for every one-part total THC.
  2. Sellers and manufacturers of orally consumed hemp-derived cannabinoid products are required to submit an Edible Hemp Products Disclosure Form to the state.
  3. Edible hemp products containing THC must have child-resistant packaging, be labeled  with specific information, and be accompanied by a certificate of analysis (CoA) produced by an independent, accredited laboratory. This amendment also requires retailers to make CoA’s available for review.
  4. Topical hemp products must also have specific label language.
  5. The sale of products containing synthetic derivatives of THC (such as delta-8-THC) is prohibited.
  6. New regulations and a registration program for hemp retailers will be established and administered by the Virginia Department of Agriculture and Consumer Services.
  7. Violations of the Food and Drink Law will result in civil penalties of up to $10,000 per violation.

From the perspective of hemp sellers, these new rules increase their business costs and prohibit them from selling products that are being produced in other states. However, the new amendments just make sense in terms of consumer safety. They are still much less cumbersome when compared to recreational marijuana laws and introduce some much-needed constraints on a CBD market that has been running wild for years.

The big problem is that the market has been unregulated for so long that reigning it in on a state-by-state basis does indeed put that state’s producers at a disadvantage. The hemp sellers that are filing the lawsuit told the Washington Post that they have an economic report that claims the new regulations would “wipe out 80 percent of the current hemp retail industry in Virginia [2].” They also feel the state is doing this intentionally.

The 2018 Farm Bill failed to specify whether the 0.3% THC limit was “total THC” or just delta-9-THC which has led to different interpretations in each state. Regardless of some states already requiring less than 0.3% total THC, producers have largely disregarded the nuance. There was also a challenged attempt at the federal level to prohibit delta-8-THC which is a less potent intoxicant than delta-9-THC. Delta-8-THC is synthetically produced from CBD and has been linked to multiple cases of vaping illness and is not too difficult for adolescents to obtain through the internet.

Finally, the Farm Bill failed to require any independent lab testing of hemp-derived products. This means current hemp products are only required to be tested once- that is when the hemp is harvested to ensure it has less than 0.3% THC. No further testing is required but most producers will test the final product’s recipe at least once for potency. They often reuse that single test result’s CoA for multiple batches. Since CBD products aren’t required to be tested for every batch, this has led to common discrepancies in the potency claimed on labeling and the actual potency of the product.

The new Virginia hemp laws are seeking to remedy the shortcomings of the 2018 Farm Bill. The Farm Bill does grant states the authority to regulate hemp production and hemp-derived products on a state-by-state basis. While Virginia’s government is not overstepping its authority and these measures are truly in the best interests of consumers, time will tell whether the court feels the amendments are unfair to hemp producers. Ultimately, the federal government, specifically the Food and Drug Administration has failed to step up and protect consumers by federally regulating hemp-derived products. This path would put all producers on an even playing field by requiring regulations like Virginia’s hemp law amendments for all states.

References

  1. Rizzo, S. (2023). Hemp businesses sue Virginia over new THC limits. The Washington Post, NA-NA.

https://go.gale.com/ps/i.do?id=GALE%7CA764115760&sid=googleScholar&v=2.1&it=r&linkaccess=abs&issn=01908286&p=AONE&sw=w

  1. Starting July 1, Amendments to Virginia’s Food and Drink and Industrial Hemp Laws Take Effect. (2023). Virginia.gov. https://www.vdacs.virginia.gov/press-releases-230615-hemp-product-enforcement.shtml
Sabine Downer
Author: Sabine Downer