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What is it really like to operate in Virginia these days? Unlike the progress seen elsewhere in the country, Virginia’s hemp laws are rolling backward.
In July 2023, updates to Virginia’s Food and Drink and Industrial Hemp Laws came into effect, redefining the state’s legal definition of hemp. In one fell swoop, these amendments have made much of a once-flourishing consumer market illegal.
It’s already forcing the closure of many businesses, affecting consumers, retailers, manufacturers, and cultivators. Now, one Virginian retailer, NOVA Hemp, is fighting back. With his livelihood handing on by a thread, NOVA suing the state in federal court.
Current State of Cannabis and Hemp Legislation in Virginia
In Virginia, a medical marijuana state, legislators seem dead set against any progression toward opening a recreational adult-use market. Despite a recent poll indicating that 60 percent of Virginians support adult use, and the 2021 passage of SB 1406, the state has now effectively rolled back on this promise.
First, adult sales in Virginia are indefinitely on hold due to a politically charged bureaucratic quagmire. Second, effective July 1, 2023, the state has amended its Industrial Hemp Law and Food and Drink Laws, changing the definition of hemp.
Among a series of updates, these revisions specifically target the manufacturing and sale of certain hemp-derived products (i.e., Delta-8) and implement stricter rules concerning maximum THC content in hemp products.
On the surface, this may not seem like a big deal. The 2018 Farm Bill lays out the maximum THC content for hemp products, and many states have also created jurisdiction-specific regulations to this effect. Yet, in Virginia, the changes effectively eliminate all traces of THC from consumer products.
Now, retail hemp products must not contain over 0.3 percent total THC or more than 2mg of total THC per package unless the CBD to THC ratio is at least 25:1.
Most full-spectrum CBD oils will naturally contain more than 2mg per package. On top of additional licensing fees and testing requirements, violations of the Food and Drink Law may result in civil penalties of up to $10,000 per violation.
Virginia’s Hemp Laws Impact Consumers, Retailers, and Processors
Virginia’s changes to how it classifies legal hemp vs. non-legal, first and foremost, impacts the consumer.
It’s no secret that Virginia’s black market is already out of control — according to Axios Richmond, only one percent of the state’s 2.4 billion cannabis sales happen in the legal sector.
It goes without saying that for the past few years, many Virginians have relied on CBD products, some of which contain higher levels of THC, for therapeutic purposes. Until now, consumers avoided buying on the black market thanks to the widely accessible hemp-derived products.
But, because a majority of products on store shelves have been outlawed, these amendments will inevitably push people into the black market to get the THC products they are looking for.
Retailers and other hemp-related businesses in the state also face a tough choice: Do they take their most profitable and popular products off the market? Do they close up shop altogether? Should they continue as per usual but risk steep fines, if not a felony charge for trafficking?
Even shipping hemp through the state now has the potential to become a felony charge. This has had an immediate impact on the state’s cultivators and processors.
As only one example, Southwest Virginia hemp processor Kerry McCormick told legislators in July, when these amendments were going down, that he would see about 15 of his jobs move over to Tennessee to avoid the hemp crackdown in Virginia.
Travis Lane of NOVA Hemp Takes on Virginia State
Facing a total shutdown, Travis Lane of Northern Virginia Hemp and Agriculture (NOVA Hemp), is determined to fight Virginia’s hemp amendments. On September 1, 2023, his company filed a lawsuit alongside Franny’s Operations Inc. and an 83-year-old consumer against the Commonwealth of Virginia, Governor Glenn Youngkin, the Board of Agriculture and Consumer Services, the Virginia Cannabis Control Authority, and every single Virginian county attorney.
Heard on September 29th, 2023, their suit alleges the recent changes to hemp-derived products and THC limits cause undue financial harm to hemp companies and inhibit interstate commerce.
As a retailer, Lane has seen his business fall by more than 90 percent after the new laws came into effect, and he was forced to remove 95 percent of formerly legal products from his shelves.
Lane and his co-defendants argue that under the Farm Act, no state has the authority to prohibit the transportation or shipment of hemp. That authority lies with the federal government.
Virginia’s new laws make it illegal to sell industrial hemp to a manufacturer anywhere in the world that creates hemp products that do not comply with Virginia’s new “total THC ” standard.
The lawsuit also argues that interstate commerce of hemp traveling through Virginia should not have to adhere to their new THC limits.
On behalf of all consumers and businesses in the state, Lane is calling out the discrepancy between the Farm Bill’s definition of hemp and Virginia’s new stricter classification. He’s fighting for an injunction to protect those adversely affected by the new laws because they “manufacture, sell, purchase, possess, or transport various products and substances containing THC that are legal under federal law but are now prohibited under Virginia law.”
NOVA Hemp Seeks Injunction on Virginia’s Hemp Laws
Lane, who has been in business since the Farm Bill passed in 2018, isn’t usually involved in state politics, especially when it comes to hemp regulations. As he says, “This isn’t normal for me.” But he’s losing his business and his livelihood. He is seeing the direct impact the new legislation is having on his customers. And he isn’t going to go down without a fight.
All of Lane’s COAs and product packages, which clearly state the contents, were approved by regulators at every stage. He’s followed all the rules but now feels like he and other law-abiding businesses are being punished for legislation that has always been unclear.
Not only has he had to remove the overwhelming majority of his products from his store, but Lane is also barred from importing any hemp products from out of state that conflict with the new amendments.
Lane has witnessed many hemp businesses already close up shop, but he wants to make a stand for his customers and employees.
As he explained to WUSA, “I was thinking of having to move into DC myself. And I kind of pulled back on moving into DC because I figured that standing up and fighting for this year and my homeland was going to be worth it just to keep all of the customers that are in rural Virginia, you know, filled with their needs.”
After the first hearing at the end of September, Lane and his co-plaintiffs now await the decision by the judge presiding over the case. For NOVA and Franny’s, the other co-plaintiff, their businesses are in the hands of the judge’s decision. Meanwhile, Rose Lane, the 83-year-old consumer also on the lawsuit, waits to find out if she will maintain access to products that have given her relief.
Virginia’s Hemp Laws in Contract with the Farm Bill
The landscape of accessible cannabis, Virginia’s hemp laws stands in stark contrast to the progressive stance adopted by other states. Despite a favorable public opinion toward recreational cannabis use and previous legislative steps toward opening up the market, Virginia’s government is now determined to entrench itself in a more restrictive position.
The stringent amendments, especially those targeting THC content in hemp products, reflect a political apprehension toward cannabis. This shift not only jeopardizes the lawful operations of retailers and processors but significantly impinges on consumer access to hemp and cannabis products, whether for health or adult-use cases.
Travis Lane and NOVA Hemp’s fight with the Commonwealth of Virginia exemplifies the conundrum in which many Virginia hemp businesses find themselves in. It’s a battle between the restrictive state laws and the preservation of what was once a legal livelihood. For Lane, everything is on the line.