Is delta-8 tetrahydrocannabinol (THC) legal to sell in Virginia? We previously reported that the legislature rejected the governor’s attempts to stymie sales of delta-8 THC, but recent developments in the commonwealth call into question the legal status of the popular cannabinoid with respect to foods and beverages.
Delta-8 THC is derived from cannabidiol (CBD) (often from CBD that itself is derived from hemp) and is often infused into edibles and tinctures and sold as a smokable concentrate in vape pens. The cannabinoid is controversial because it produces psychoactive effects comparable to those produced by delta-9 THC, the most prevalent cannabinoid in marijuana (read more about this here). Nonetheless, the federal Drug Enforcement Administration considers delta-8 THC to be a derivative of hemp, which was made federally legal by the 2018 Farm Bill. It has therefore been left to the states to decide how to regulate this new class of products.
As with marijuana, states take different approaches to delta-8 THC. Some have decided to restrict its sale to marijuana dispensaries where it can be tested, tracked, and verifiably sold only to customers over 21 years of age. Other states treat it like any other hemp derivative, such as CBD.
Concerned with youth access to delta-8 THC products, which are sometimes packaged to mimic popular candies, Virginia Governor Glenn Youngkin inserted amendments concerning delta-8 THC into a marijuana bill that made it to his desk during the state’s 2022 legislative session. The amendments would have prohibited the sale of an industrial hemp extract, a food containing an industrial hemp extract, or a hemp product intended for smoking that (1) contains a total THC (including delta-8, delta-9, and delta-10) content of more than 0.3% or (2) contains “synthetic” delta-8 THC. Flooded with advocate and industry concerns about potential social justice and therapeutic access issues, however, senators rejected the governor’s amendments by tabling the entire bill until 2023.
During the 2022 budget session, the governor was able to include in the state’s budget bill (HB 30) hemp- and THC-related amendments, prohibiting extracts and foods containing any type of THC from being sold to people under 21 and imposing new testing and packaging and labeling requirements. For example, the amendments prohibit the sale of products in the shape of a human, animal, vehicle, or fruit, as well as the use of packaging or labeling similar to existing food products.
HB 30 also included what appeared to be a relatively innocuous declaration that “any person that sells or offers for sale an industrial hemp extract … or a food containing an industrial hemp extract is subject to the provisions of Chapter 51 (§ 3.2-5100 et seq.) of Title 3.2 of the Code of Virginia” — the state’s food and drink laws enforced by the Virginia Department of Consumer Services (VDACS). This provision appears to have gone largely unnoticed by industry and legislators, perhaps because the legislature has required industrial hemp extracts to comply with Virginia’s food and dietary supplement laws since at least 2019 when certain amendments to the state’s industrial hemp laws were passed.
On June 30, shortly after passage of HB 30, VDACS issued a joint press release with the office of the attorney general, stating that both agencies would be initiating efforts to address the retail sale of THC products “in response to provisions included in the budget.” The press release characterizes delta-8 THC as a “chemically-synthesized cannabinoid” and declares that “any chemically-synthesized cannabinoid is a food adulterant and any person who manufactures, sells, or offers for sale a chemically-synthesized cannabinoid, including delta-8 THC, as a food or beverage is in violation of the Virginia Food and Drink Law.” In other words, VDACS announced that the sale in the commonwealth of foods or beverages containing delta-8 THC henceforth would be considered unlawful.
The announcement surprised some who had been following the legislature’s delta-8 debates during the 2022 session and who had assumed that the legislature had rejected the ban on sale of delta-8 THC products but allowed certain packaging, labeling, and testing requirements to pass in the budget bill.
The new policy’s effects on Virginia’s hemp industry and on consumers of delta-8 for therapeutic purposes were discussed at a July 7 meeting of the state’s Industrial Hemp Task Force. The purpose of the task force is to “analyze and make recommendations regarding whether any statutory or regulatory modifications are necessary to ensure the safe and responsible manufacture and sale of industrial hemp extracts and other substances containing tetrahydrocannabinol that are intended for human consumption, orally or by inhalation, in the Commonwealth.” At the meeting, a representative from VDACS explained that because delta-8 products are made by applying a chemical process to CBD, they do not meet the state’s definition of industrial hemp extract (an extract  of a Cannabis sativa plant … ). Nor, explained the VDACS representative, has delta-8 been generally recognized as safe for consumption at the federal or state levels. As such, VDACS maintains that the substance is an adulterant and cannot be lawfully added to consumable products in Virginia (VDACS’ authority does not extend to topicals or inhalable products). VDACS referenced the language in the budget bill, requiring industrial hemp extracts and food containing industrial hemp extracts to comply with the state’s food and drink laws as the source of its authority to make the sweeping declaration. Additionally, under VDACS’ new policy, delta-8 THC products can only be sold in the state’s medical marijuana dispensaries (according to the Board of Pharmacy, medical marijuana products are not subject to the state’s food laws).
Industry members questioned VDACS’ authority, especially given that the legislature rejected amendments by the governor that would ban the sale of most delta-8 products. They claimed that delta-8 is an important alternative to opiates for pain management and can be safely sold in the state subject to reasonable regulations.
VDACS is currently in “phase I” of its enforcement strategy, which focuses on education and voluntary compliance. The legislature is likely to take up the issue again in the 2023 session.
Our Cannabis Practice provides advice on issues related to applicable federal and state law. Marijuana remains an illegal controlled substance under federal law.