The Virginia General Assembly recently passed — in both chambers — a bill to regulate delta-8 THC products in the commonwealth. The bill now awaits the governor’s signature. Governor Youngkin and the Republican-controlled House of Delegates have prioritized the control of these novel hemp-derived products over legislation to legalize the retail sale of adult-use marijuana, which will no longer begin in 2024.

What Is Delta-8?

While state legislatures — including the Virginia General Assembly — engage in an ongoing debate about whether to legalize nonmedical use and retail sale of marijuana, manufacturers have developed novel ways to extract alternate forms of THC, including delta-8 and delta-10 THC, from hemp plants. These forms of THC are said to have effects similar to marijuana but are legal under federal law thanks to the 2018 Farm Bill, which legalized hemp and its extracts containing less than 0.3% of delta-9-THC.

State regulators across the country have raised the alarm about these new products, the sale of which is largely unregulated in many states. The lack of regulation makes it difficult to enforce minimum-age laws, testing, and packaging standards on these products. As such, Virginia now joins the ranks of states seeking to impose restrictions on these compounds via HB 2294.

What Should You Know About the Bill?

Since 2018, practically any retailer in Virginia can sell hemp-derived ingestible products, such as edibles and tinctures. Under HB2294, however, all businesses that manufacture or sell “an industrial hemp extract or food containing an industrial hemp extract” must obtain a license from the Virginia Department of Agriculture and Consumer Services (VDACS) or face fines of up to $10,000 per day of violation and potential criminal misdemeanor charges. The bill would cap total THC concentration at 0.3% and prohibit products from containing more than 2mg of THC per package. Product packaging would be child-resistant, contain a clear disclosure of the amount of THC per package and serving, and be accompanied by a certification of analysis from an independent laboratory. Topical hemp products must contain a “bittering agent that renders the product unpalatable.”

Products exceeding the above THC thresholds would no longer be classified as “industrial hemp extracts,” but rather be regulated as “marijuana products” that can only be lawfully sold in Virginia’s few medical marijuana dispensaries.

What Comes Next?

If the governor signs HB 2294, retailers who sell hemp products in Virginia should apprise themselves of the new law and prepare to apply for a license from VDACS if applicable to their business. Manufacturers selling hemp products in Virginia should similarly be aware of the new packaging, labeling, and content requirements in the law and adjust their product offerings in the state accordingly.

Our Cannabis Practice provides advice on issues related to applicable federal and state law. Marijuana remains an illegal controlled substance under federal law.