Virginia judge deems delta-8 as a significant danger in recent ruling against hemp stakeholders

Virginia judge’s setback ruling against hemp stakeholders declares delta-8 as a ‘credible threat’

Virginia hemp stakeholders faced a setback in their efforts to stop the enforcement of state regulations that prohibit the sale of delta-8 THC.

In a recent court decision, a federal judge denied a requested injunction in a lawsuit filed by the industry. The lawsuit aimed to block a state law passed earlier this year, which imposes fines on businesses that sell delta-8 and other products that exceed the limits for THC. These rules establish strict limits on THC levels in hemp food products like gummies and candies.

U.S. District Judge Leonie M. Brinkema ruled that the state’s regulation of hemp does not conflict with federal law or interfere with interstate commerce.

Brinkema stated that the state has shown that delta-8 THC poses a credible threat to the population of Virginia, particularly to vulnerable groups such as children, who are at risk of hospitalizations and poisonings. She also emphasized that the decision to protect public interest was made by Virginia’s elected policymakers, and the court must respect those judgments. This ruling suggests that hemp interests in Virginia will face challenges in their fight against the new law.

Synthetic THC

Delta-8 is a synthetic compound derived from hemp-based CBD. Unlike delta-9 THC, which comes from marijuana plants and is a natural derivative, delta-8 has gained popularity as an alternative to marijuana in Virginia and across the U.S.

In this initial court opinion, three parties joined the lawsuit against the state: Northern Virginia Hemp and Agriculture, Franny’s Farmacy (both hemp sellers), and Rose Lane (a private citizen who claims she has been unable to acquire delta-8 THC for arthritis relief). While the lawsuit is still being considered by the court, the new rules remain in effect.

The Virginia law, which the hemp industry plaintiffs targeted, cracked down on edibles and other products containing delta-8. These products had become widely available in smoke shops and retail outlets across Virginia and many other states.

Farm Bill limitations

The plaintiffs argued that Virginia’s law contradicted provisions in the 2018 Farm Bill, which legalized hemp and all its downstream products. However, the Farm Bill did not anticipate the production of psychoactive products from hemp-derived CBD, which is possible in a laboratory. Brinkema concluded that federal hemp laws do not prevent states from regulating or restricting certain hemp products.

Brinkema wrote, “If Congress chooses to make a substance – here, industrial hemp as defined by its delta-9 THC level – legal at the federal level with respect to the Controlled Substances Act, that does not mean that Congress has mandated that the substance must be legal in every state. Nor does it mean that Congress has mandated that any product that simply includes industrial hemp as one ingredient or derivative among many must be legalized by every state legislature.”

The plaintiffs also raised concerns about the restrictions on food products in the bill, which could impact the market for full-spectrum CBD products that have been beneficial for epileptic children. They criticized a provision that set the total THC limit for food products at a CBD:THC ratio of 25:1.

Other states

Due to the lack of clarity from the federal government and regulators, many states are grappling with the regulation of delta-8 THC. Recent court rulings in Maryland, Arkansas, and Texas have provided temporary protection for delta-8 producers.

While these states have currently shielded delta-8 under a strict legal interpretation that highlights the conflict between state and federal hemp laws, changes at the federal level could potentially reverse this protection, possibly by the end of the year. The U.S. Drug Enforcement Administration has expressed its intention to revise federal drug-control laws to ban highly concentrated synthetic THC products like delta-8. Additionally, the upcoming 2023 Farm Bill, currently being debated, is expected to provide a more narrow definition of hemp that excludes these products. The bill is likely to be passed by the end of the year.

In August, a group of cannabis regulators from several states sent a letter to Congress, suggesting the establishment of a national framework for all hemp-based cannabinoids, including CBD and its derived products like delta-8. They emphasized the need for a comprehensive regulatory approach to address all cannabinoid hemp products.

Impact of delta-8

Consumers have long been at the mercy of untrustworthy CBD and delta-8 THC producers, resulting in significant harm to the overall reputation of hemp. This has also negatively affected the fiber and food markets.

The emergence of the synthetic compound delta-8 followed the CBD boom and subsequent decline after the passage of the 2018 Farm Bill. CBD producers sought an outlet for their excess supplies, and delta-8 THC producers found it in a semi-gray market, exploiting a loophole in federal law.

Delta-8, a type of hemp product that was not intended by the Farm Bill, is widely available in retail outlets, often packaged to resemble popular candy brands.

According to Seth Goldberg, a cannabis law specialist at the Philadelphia-based Duane Morris law firm, products containing Hemp Synthesized Intoxicants (HSIs) pose health and safety risks because they are not subject to the same packaging, labeling, and testing requirements as state-legal adult-use and medical marijuana products. Goldberg highlights that Congress did not intend to legalize intoxicating compounds derived from hemp while maintaining the prohibition on delta-9 THC in marijuana.

Other provisions

The new Virginia law also transferred oversight of retail registration, as well as packaging, labeling, and testing requirements, from the Virginia Department of Agriculture and Consumer Services to the Virginia Cannabis Control Authority. Additionally, the law allocates state funds for a team of inspectors to monitor the production of cannabis products sold in Virginia.

While possession and home cultivation of marijuana became legal in Virginia in 2021, marijuana sales are restricted to licensed medical dispensaries.

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