Virginia Judge Rejects Injunction on Law Limiting Delta-8, Total THC in Hemp Products

Since the 2018 Farm Bill authorized hemp production and removed the crop from the Drug Enforcement Administration’s (DEA) schedule of Controlled Substances, the hemp-derived cannabinoid industry has boomed across the nation — including the sale of hemp-derived, psychoactive delta-8 and delta-9 THC.

Virginia is one of the more recent states to contest the ever-increasing hemp-derived cannabinoid market, namely as it pertains to THC. While hemp businesses recently requested an injunction, which would have blocked a new state law imposing stricter limits on hemp products with intoxicating amounts of THC, a federal judge in Northern Virginia rejected the effort in an initial opinion. 

This means that the new rules will remain in place until the lawsuit moves forward and the court makes final rulings around the case.

Two hemp businesses and a consumer filed the lawsuit in federal court back in September, challenging the controversial new rules surrounding hemp-derived cannabinoid products which went into effect July 1. The new regulations include a 0.3% limit for hemp-derived products, a 2 mg limit on total THC and a CBD-to-THC ratio of at least 25:1. 

The new rules have effectively made nearly all delta-8 THC products illegal in the state, though online sales are still active. As a result, a number of hemp businesses have been faced with high fines and many have pulled out of the state entirely.

Northern Virginia Hemp and Agriculture was one business that brought the suit, saying it had lost 90% of its sales because of the new law. The other company, North Carolina-based Franny’s Farmacy, said that it can no longer lawfully ship its products into or through Verginia. Rose Lane, the private citizen and final plaintiff in the case, also said that the new law has kept her from legally acquiring delta-8 THC to help with pain and symptoms associated with arthritis.

While hemp businesses and professionals argued over the past several months that the state had overstepped its authority, regulating hemp in a way that conflicted with federal law and interfered with interstate commerce, U.S. District Judge Leonie M. Brinkema suggested the opposite was true in her 27-page opinion.

“On this record, defendants have 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 wrote. “The decision to advance that interest was done by the elected policymakers of Virginia, and this court must defer to those political and social welfare judgements.”

A main argument of the lawsuit focused on Virginia’s overruling of federal law banning some hemp products, citing the 2018 Farm Bill which opened up the national market for such products including hemp-derived THC. Brinkema argued that Virginia was within its right to make the changes, in that states can take more specific actions in regulation. 

“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.”

Brinkema similarly refuted claims surrounding the interference of interstate commerce, including Virginia law which still allows hemp businesses to “transport federally compliant hemp products through Virginia.” Pointing to Franny’s Farmacy’s claims surrounding diverted transport through the state, the judge said the statements were partly hypothetical given that the company “has not alleged that any of its shippers have actually had to detour around Virginia.”

“Because plaintiffs have not demonstrated either a likelihood of success on the merits or irreparable unjust if SB 903 remains in effect, and because they have failed to show that the balance of equities and public interest weigh in favor of an injunction, their Motion for Preliminary Injunction will be denied by an Order to be issue with this Memorandum Opinion,” Brinkema concludes.

While the ruling isn’t the end-all-be-all for the new law, it’s surely a sign that the hemp industry may have a hard time combatting the new regulations as the lawsuit continues to progress.

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