On October 30, Virginia’s hemp industry suffered an early defeat in its effort to overturn Virginia SB 903, a law that imposed stricter limitations on hemp products than what is currently required under federal law.

As our team previously discussed, federal law enacted under the 2018 Farm Bill only imposes limits on total delta-9 tetrahydrocannabinol (THC), otherwise a product is considered marijuana, rather than hemp. The growing intoxicating hemp product market, however, uses hemp-derived THC to create intoxicating hemp products, by utilizing delta-8 and delta-10 THC to manufacture products. In light of this trend, many states have subsequently imposed limits on total THC content. Virginia’s response was the 2023 legislative session via SB 903, which requires that hemp products, industrial hemp extracts, and other consumable substances contain no more than 0.3% total THC, plus places limits on the total THC per package. As a result, many hemp-derived products that were previously sold at a variety of retailers may now only be sold in licensed medical marijuana dispensaries. This restriction is likely to put many of the Commonwealth’s hemp manufacturers and retailers out of business because there are no opportunities to obtain a medical marijuana license at this time, and only existing medical licensees are permitted to manufacture the products that are sold in Virginia’s licensed dispensaries.

Facing this threat, plaintiffs — Northern Virginia Hemp and Agriculture, LLC, a hemp product manufacturer; Franny’s Operations, Inc., a hemp product retailer; and Rose Lane, a Virginia resident who uses hemp products to alleviate her arthritis symptoms — challenged the legality of the law in federal court (see N. Va. Hemp & Agriculture, LLC v. Virginia, No. 1:23cv1177 (E.D.Va. Oct. 30, 2023)). The plaintiffs advanced a variety of legal theories, including that SB 903 is either expressly or impliedly preempted by the 2018 Farm Bill and violates the Commerce Clause and the Dormant Commerce Clause of the U.S. Constitution.

U.S. District Judge Leonie Brinkema was unconvinced. Although the 2018 Farm Bill included a preemption clause that prevents states from prohibiting the transportation or shipment of industrial hemp through any state, Judge Brinkema’s order found that the 2018 Farm Bill contains a clear, unambiguous statement declining to preempt state laws regulating hemp production (see 7 U.S.C. § 1639p). Similarly, the court was unpersuaded by the plaintiff’s other theories and arguments related to preemption and did not agree that SB 903 violates the Commerce Clause or the Dormant Commerce Clause. Beyond the merits of the legal arguments, Judge Brinkema wrote that Virginia had “demonstrated that delta-8 THC is a credible threat to the Virginia population, and there is a strong public interest in protecting the citizens of the Commonwealth from substances like delta-8, including a vulnerable population, such as children, from hospitalizations and poisoning.”

Although the Virginia plaintiffs have appealed Judge Brinkema’s order, their early loss in this case is not a good sign for their prospects of overturning SB 903 and restoring the Virginia hemp industry to what it was prior to 2023. The hemp industry’s attempts to stay afloat via litigation, however, may soon be moot as Congress debates a new Farm Bill. This proposed legislation could impose new limits on total THC in hemp, potentially disrupting the nationwide market for intoxicating hemp products.