Two hemp businesses and a private citizen are challenging a Virginia law that instituted tougher limits on hemp products in Virginia in federal court, saying the new rules cause financial harm to hemp businesses and interfere in interstate commerce.
The law, which went into effect July 1, set the maximum amount of THC in hemp products at 0.3% concentration and 2 milligrams per package. This cutoff has made hundreds of products placed on shelves before July illegal and subject to fines if sold.
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The lawsuit by hemp product retailer Northern Virginia Hemp and Agriculture, hemp customer Rose Lane and North Carolina-based hemp producer and distributor Franny’s Operations argues that if not halted, the law “will cause millions of dollars of irreparable harm” and “cause the Banned Products to be unavailable in the Commonwealth, exacerbating potential health problems to thousands of Virginians.”
The plaintiffs argue that the state’s definition of legal hemp conflicts with the federal definition — cannabis with less than 0.3% of specifically delta-9 THC content. Virginia’s law, in contrast, defines legal hemp products as those with less than 0.3% total THC content, which includes not just the most common delta-9, but also the milder delta-8 strain and all other natural and synthetic isomers combined.
The complaint says this puts state law in direct conflict with federal law, running afoul of the U.S. Constitution’s supremacy clause.
Northern Virginia Hemp and Agriculture said the new law has caused the loss of 90% of its business because nearly all of the products it manufactured and sold prior to July 1 are now banned.
The sale of hemp products “has turned into people’s livelihoods,” said Travis Lane, owner of the business. “This [lawsuit] is just worth a try, you know, like it’s a 50-50 shot for us to win or lose.”
Lane said if the law is not halted, he will be forced to shut his doors before the end of the year. “I feel like it should definitely be regulated, but not regulated to the point where you’re shutting doors of good businesses,” he said.
Jason Amatucci, president of the Virginia Hemp Coalition, which helped find plaintiffs and fundraise for the suit, said Virginia’s stricter limits were supported and lobbied for by medical marijuana companies that saw the hemp industry as a competitive threat. He called it “a double standard” that marijuana is still illegal at the federal level while its use has been legalized in Virginia, but some federally legal hemp products are now banned in the state.
Lawmakers, however, have shown rising concern about the growth of a largely unregulated market in Virginia and associated sharp increases in the hospitalization of minors who have ingested hemp-derived products. Besides the THC limits they imposed, the new law includes packaging security and labeling requirements and imposes escalating fines for non-compliance.
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Chloe Smith, a spokesperson for Attorney General Jason Miyares, declined to comment on the pending litigation but reiterated that Miyares “is dedicated to combating the rise of accidental THC poisonings in children, and is concerned about the rise of dangerous, counterfeit THC-infused products marketed towards our vulnerable youth.”
Amatucci, however, said he doesn’t think the law sufficiently targets child safety or counterfeit synthetic products.
“We need education for these things, and we also need smart laws that target exactly what we want to target, but to take a straight sword and cut the industry down like they did was irresponsible,” said Amatucci. “Whether we win the lawsuit or [are] coming back next session, we’re going to have to fix this.”
Complicating Virginia’s law is a carveout for hemp-based CBD products, written after complaints by caregivers of epileptic children who use CBD oil as an anti-seizure treatment, that sets a minimum 25:1 ratio of CBD to THC for products with more than 2 milligrams of THC.
Del. Dawn Adams, D-Richmond, has pointed out that manufacturers will still be able to sell large amounts of THC provided they also include 25 times that amount of CBD. Visitors to NoVa Hemp’s website are greeted with a popup that reads, “All products in Virginia now come with an additional 25:1 ratio of CBD isolate added to the packaging. You will not be disappointed!”
“It’s just like more steps that we have to put into something that we don’t think needs to really happen,” said Lane. “It’s ridiculous.”
The plaintiffs are also challenging a provision of the law prohibiting hemp processors from selling industrial hemp to anyone inside or outside state lines if the seller has reason to believe it will be used in a substance that violates the state’s 0.3% THC limits.
On the federal level, marijuana remains illegal, but the 2018 farm bill removed hemp from a Schedule I controlled substances classification, a category that includes heroin. Last week, the Department of Health and Human Services suggested the Drug Enforcement Agency change marijuana’s classification to a Schedule III drug.
The case will be heard on Sept. 29 by District Judge Leonie M. Brinkema in Alexandria.
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