U.S. Court Upholds Virginia’s Ban On Intoxicating Hemp

A U.S. court has upheld Virginia’s strict regulations on intoxicating hemp products, ruling they don’t conflict with the federal law and Dormant Commerce Clause, reinforcing the state’s power to protect public health and safety.

Earlier this month, the U.S. Court of Appeals for the Fourth Circuit decided an appeal filed by hemp company Northern Virginia Hemp and Agriculture and other plaintiffs challenging Virginia’s Senate Bill 903, a law regulating hemp products.

The court denied claims that the law conflicts with federal law or violates the so-called Dormant Commerce Clause–a principle of law that prohibits states from enacting laws that unduly interfere with interstate commerce.

The court, in its judgment, stated that the states can provide legislation concerning health and safety matters, including restrictions on intoxicating hemp products.

The decision is a major setback to the hemp industry’s legal offensive against state rules, as it upholds that Virginia’s law in no way conflicts with federal rules or the Constitution.

Virginia’s Crackdown On Intoxicating Hemp Products

The plaintiffs have argued this state law conflicts with federal law under the 2018 Farm Bill because it restricts the amount of total THC in retail hemp products to 0.3%.

While the 2018 Farm Bill legalized hemp containing as much as 0.3% delta-9 THC, the main compound of marijuana also present in industrial hemp in small quantities, it didn’t restrict other forms of THC, which included delta-8, providing those products complied with their level of delta-9 THC levels.

Virginia acted upon Senate Bill 903 in reaction to the proliferation of intoxicating hemp products ranging from gummies to beverages sold as marijuana alternatives.

Most of these are synthetically produced from CBD derived from hemp and include various compounds like delta-8 THC, delta-10 THC, THC-O, and HHC, which created a fast-growing market.

The law, therefore, was meant to protect consumers from exposure to such intoxicating substances.

While the plaintiffs alleged that Virginia’s law was preempted by federal law and violated the Dormant Commerce Clause, such arguments were rejected by the court, which consequently ruled that the 2018 Farm Bill didn’t preempt Virginia’s regulations.

The federal law allows states to adopt more restrictive rules concerning hemp production, and Virginia’s law speaks particularly to the total THC content to make sure health and safety concerns are met.

The court also held that the Dormant Commerce Clause was not implicated because the statute treats all in-state and out-of-state parties equally and neither burdens interstate commerce nor favors local business.

In its ruling, the court said that since Virginia had a greater responsibility to care for the local health and safety concerns related to psychoactive hemp products, it could regulate them more strictly than federal law.

Yet the ruling did recognize that the law may have economic consequences for some businesses but found no reason to stop it from coming into force.

Hemp’s Future Under Review In Upcoming Farm Bill

At the federal level, the 2018 Farm Bill—what unwittingly fostered the psychoactive hemp products boom—remains under review.

Lawmakers have proposed amendments that could even redefine hemp to exclude intoxicating substances altogether.

That would provide a consistent federal standard and perhaps remove the need for state-level regulatory battles, but it would also deal a severe blow to the hemp industry.