[co-author: Kevin Andres Rodriguez]
Virginia’s new hemp-derived products statutes (Va. Code § 3.2-5145.1 et seq.) went into effect as of July 1, standing to drastically alter the availability of hemp-derived products in Virginia.
What the New Laws Require
The new statutes mandate that any “industrial hemp extracts” or foods containing industrial hemp extracts contain either 25 times more cannabidiol (CBD) than tetrahydrocannabinol (THC), or no more than two milligrams of total THC (hemp extracts were previously limited to 0.3% delta-9 THC only). Products with high concentrations of psychoactive hemp-derived delta-8, delta-9, and delta-10 THC, all of which have been proliferating in the last few years, may no longer be lawfully sold. Further, any business that manufactures or sells industrial hemp extracts must obtain a license from the Virginia Department of Agriculture and Consumer Services (VDACS) at a cost of $1,000 per year. Retailers selling unauthorized products or operating without a permit are subject to fines ranging up to $10,000 for each day a violation occurs. In addition to the THC limitations, the statutes also require products to be sold in child-resistant packaging and include a label that clearly states:
- All ingredients contained in the industrial hemp extract or food containing an industrial hemp extract;
- The amount of such industrial hemp extract or food containing an industrial hemp extract that constitutes a single serving;
- The number of milligrams of total THC per serving and number of milligrams and percent of total THC per package.
Such products must also be accompanied by a certificate of analysis from a third-party testing laboratory that states the total THC in the product or the total THC in the batch from which the product originates. Finally, manufacturers must identify each batch of industrial hemp product with a unique code for traceability, and such code must be legible on the label of the final product.
Why Was This Legislation Prioritized and Enacted?
Virginia Governor Glenn Youngkin and the Virginia legislature prioritized this measure during the last legislative session, citing an uptick in unintended ingestion of intoxicating hemp products by minors who mistake them for candy and other popular snacks. Proponents argue that these new limits and packaging regulations are needed for public safety, as these products are currently being sold with little to no oversight. Opponents argue that these products are used therapeutically by many adults, who will have to travel out of state or resort to an unregulated source for the products they have come to rely on. In addition, numerous small Virginia manufacturers and retailers are reliant on this market for their livelihood and will be forced to substantially change their product offerings. Nonetheless, the current statutes are a legislative compromise that was struck to keep some products on the market, while limiting the availability of intoxicating THC products outside of regulated cannabis dispensaries.
Virginia hemp manufacturers and retailers must review the new standards and ensure that their offerings comply. As this issue has been on the forefront of regulator’s minds over the last year, market participants should expect inspections to verify compliance with the new laws. The statutes do not distinguish between brick and mortar and online retailers, but it is possible that forthcoming VDACS regulations will clarify the extent to which online retailers are also expected to comply.
