Virginia judge calls delta-8 ‘credible threat’ in setback ruling against hemp stakeholders

Virginia hemp stakeholders suffered a setback in their efforts to halt enforcement of state rules that ban delta-8 THC.

In an opinion this week, a federal judge turned back a requested injunction in an industry lawsuit that aimed to block a state law passed earlier this year, leaving rules in effect that carry stiff fines for businesses that continue to sell delta-8 and any other products that exceed total limits for natural and synthetic forms of THC. The rules set strict limits on total THC levels in hemp food products such as gummies and other “candies.”

U.S. District Judge Leonie M. Brinkema ruled that the state had not overstepped its authority to regulate hemp in a way that conflicted with federal law nor interfered with interstate commerce.

The state “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 poisonings,” Brinkema ruled.

“The decision to advance that (public) interest was done by the elected policymakers of Virginia, and this court must defer to those political and social welfare judgments,” she added, signaling that hemp interests in the state are facing an uphill battle in their fight against the new law.

Synthetic THC

Delta-8, is a synthetic compound derived from hemp-based CBD. By contrast, delta-9 THC, which comes from marijuana plants, is a natural derivative. Delta-8 has proven a popular alternative to marijuana in Virginia and across the U.S.

The court’s initial opinion issued Monday denied a request by three parties who joined in the lawsuit against the state: Northern Virginia Hemp and Agriculture and Franny’s Farmacy, both hemp sellers; and Rose Lane, a private citizen who claims she has been blocked from acquiring delta-8 THC to ease her arthritis.

The lawsuit remains under consideration by the court, but the new rules remain in place.

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

Farm Bill not overarching

Plaintiffs argued that Virginia overruled provisions in the 2018 Farm Bill, which legalized hemp and all downstream products. But the historic measure failed to take into account the possibility that producers might make psychoactive products from hemp-derived CBD, which is possible in the lab. Brinkema concluded that federal hemp laws do not prevent states from regulating or restricting some hemp products.

“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,” Brinkema wrote. “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.”

Stakeholders had also said restrictions on food in the bill threatened the market for full-spectrum CBD products that have helped epileptic children as they criticized a provision that set the total THC barrier for food products at a ratio for CBD to THC of 25/1. 

Other states

In the absence of clarity from the federal government and regulators, many states are grappling with delta-8 THC. Court rulings this year in Maryland, Arkansas and Texas put temporary protection in place for delta-8 producers.

While those states have, for now, shielded delta-8 under a strict legal interpretation that highlights the conflict between state and federal hemp laws, changes expected at the federal level could reverse that, perhaps by the end of the year. The U.S. Drug Enforcement Administration has indicated it intends to change federal drug-control laws to ban highly concentrated synthetic THC products such as delta-8. Also the 2023 Farm Bill, now being debated, is likely to draw a more narrow definition of hemp that excludes such products. The measure is expected to be passed by the end of the year.

A group of cannabis regulators from several states in August sent a letter to Congress suggesting a national framework be established for all hemp-based cannabinoids – including CBD and any downstream products made from CBD such as delta-8, suggesting “a comprehensive regulatory approach that accounts for all cannabinoid hemp products is urgently needed.”

Scourge of delta-8

Consumers have for years been at the mercy of dodgy CBD and delta-8 THC makers, who have done serious damage to hemp’s reputation overall, causing fiber and food markets to also hit the skids.

The synthetic compound delta-8 emerged in the wake of the CBD boom and bust that followed passage of the 2018 Farm Bill; the downturn left CBD producers looking for an outlet for their pent-up supplies. They found that outlet among delta-8 THC producers working in a semi-gray market based on the loophole in federal law.

Delta-8, a kind of hemp product that the Farm Bill never intended, is widely available at common retail outlets in packaging that mimics leading brands of candy and other treats.

“Products containing HSIs (“Hemp Synthesized Intoxicants”) present a health and safety risk to consumers because they are not regulated with packaging/labeling and testing requirements like state-legal adult-use and medical marijuana are,” Seth Goldberg, a cannabis law specialist at the Philadelphia-based Duane Morris law firm, wrote in an analysis of the Virginia situation on his company’s blog.

“In defining hemp as it did in passing the 2018 Farm Bill, Congress did not intend to legalize a host of intoxicating compounds derived from hemp, while maintaining the prohibition against the delta-9 THC in marijuana,” Goldberg said.

Other provisions

The new Virginia law also transferred oversight of registration to operate retail outlets, and packaging, labeling and testing requirements to the Virginia Department of Agriculture and Consumer Services to the Virginia Cannabis Control Authority, and provides state money for a team of inspectors to monitor production of cannabis products being sold in Virginia.

Possession and home cultivation of marijuana became legal in Virginia in 2021. But marijuana sales in the state are restricted to licensed medical dispensaries.