Virginia restricts and regulates the sale, distribution, and manufacture of hemp-derived delta-8 THC food and beverages. State regulators claim delta-8 is an illegal food adulterant, encouraging all vendors and manufacturers to cease selling, distributing, or manufacturing delta-8 products.
Failure to comply will result in escalating enforcement measures. This ban is backed by amendments to §58.1-301 of the Code of Virginia through House Bill 30, effective July 1, 2022.
Delta-8 THC products can only be sold and distributed in state-licensed medical cannabis dispensaries to users 21 and over. However, delta-8 oils, vapes, and other non-edible products are still openly sold across the state.
Is delta-8 legal in Virginia?
Virginia restricts the sale, distribution, and manufacture of hemp-derived delta-8 edibles, such as beverages and foods, citing health and safety issues. Delta-8 vapes, oils, and other non-edible products are available online or through physical stores.
The state also prohibits delta-10, HHC, THC-O and other synthetically-derived cannabinoids in edible products.
Medical and recreational cannabis is also legal — Virginia regulators protect marijuana-derived delta-8 under state law.
You can travel into Virginia with hemp-derived, non-edible delta-8 products in your possession without fear of prosecution. You cannot travel into the state with any form of marijuana-derived delta-8.
Hemp-derived CBD is legal in Virginia.
The Legislative History of Delta-8 in Virginia
In 2019, Virginia passed HB. 1839, a vital piece of legislation that legalized the farming and cultivation of hemp and the use, possession, sale, distribution, and production of hemp-derived compounds, including delta-8 THC.
In 2020, Virginia amended or added specific definitions of marijuana and hemp in its Drug Control Act. Section 54.1-3401 defines hemp as separate from marijuana under state law. Similarly, Section 54.1-3446 removes all hemp-derived tetrahydrocannabinols from its Schedule I controlled substances list.
However, the state now restricts and regulates hemp-derived delta-8 in foods and beverages following the amendments made to §58.1-301 of the Code of Virginia through House Bill 30.
The amendments restrict the sale of delta-8 food and beverage products carrying above 0.3% THC to anyone under 21, and will only be available in state-licensed medical cannabis dispensaries. Delta-8 manufacturers must comply with new packaging, labeling, and testing guidelines before going to market. These amendments came into effect on July 1, 2022.
The Virginia Department of Agriculture and Consumer Safety (VDACS) issued a press release stating that delta-8 and other chemically-synthesized compounds are illegal food adulterants and not permitted in food and beverage products.
According to the VDACS Commissioner, Joseph Guthrie, the ban seeks to educate retail food establishments and food manufacturers on the law and encourage voluntary compliance.
The VDACS regulatory response to chemically-synthesized cannabinoids in foods and beverages is to educate food manufacturers and retail food establishments of the law and encourage voluntary compliance. Once regulatory options are exhausted, the case could be referred to a Commonwealth’s Attorney for further enforcement.
Joseph Guthrie, VDACS Commissioner
The press release says failure to comply with this ruling voluntarily can result in a Class 1 misdemeanor penalty, punishable by a fine or jail time.
Manufacturers and producers cannot offer the sale or sell a product “in a package that mimics a trademarked brand or another famous or identifying mark”. The VPCA also prohibits products containing industrial hemp extract or another substance with THC “that depicts or is in the shape of a human, animal, vehicle, or fruit”.
We emailed a VDACS representative and had this response:
“VDACS considers any food that contains a cannabinoid that does not meet the definition of industrial hemp extract or required regulations pertaining to an industrial hemp extract and that was not manufactured by an approved source to be adulterated and any person who creates or sells a food containing such cannabinoid to be in violation of the Law. Food manufacturers, food distributors, and retail food establishments, when inspected, will be asked to provide documentation that those products that are intended for human consumption contain ingredients, including cannabinoids, which meet the statutory requirements of the Law and regulations adopted pursuant thereto”.
Is Recreational and Medical Marijuana Legal in Virginia?
Virginia legalized marijuana on July 1st, 2021, with some limitations. Recreational cannabis users can only use and possess up to an ounce of weed. Money can’t change hands in exchange for weed until dispensaries are established in 2024. Sharing of cannabis and growing four plants at home are allowed (for now).
Does this mean delta-8 derived from marijuana is legal in Virginia?
Yes. Delta-8 in marijuana is technically now legal in Virginia and protected under state law.
Buying Delta-8 Products in Virginia
Buying certain delta-8 THC products is still legal in Virginia despite the VDACS banning delta-8 edibles. You can purchase hemp-derived delta-8 oils, vapes, and other non-edible products from physical retail stores and head shops.
There are many retail stores located around Virginia, particularly in the major cities and towns such as Richmond, Baltimore, Charlottesville, and Richmond.
Delta-8 THC derived from Farm Bill-compliant hemp is perfectly legal and accessible in Virginia, provided it’s not in edible products, including beverages and food. For hemp to be federally compliant under the Farm Bill’s guidelines, it must carry no more than 0.3% THC. Anything above this and it’s considered marijuana, which is a controlled drug regulated by the federal government.
However, with recreational cannabis recently legalized in Virginia, delta-8 in weed is legal under state law.
Can You Travel to Virginia with Delta-8?
Exercise caution if you plan on traveling to Virginia with delta-8 foods, beverages, and other related edibles in your possession. The state currently restricts and regulates hemp-derived delta-8, meaning law enforcement could arrest you for illegal delta-8 product possession and transportation across state borders. We recommend contacting VDACS for more information.
You can also legally travel with delta-8 THC from Virginia into neighboring states such as North Carolina, Tennessee, Washington DC, and West Virginia.
Can I travel to Virginia with marijuana-derived delta-8 THC?
No. State legalization of recreational marijuana does not permit cross-border transportation of marijuana-derived products. You cannot travel to Virginia with marijuana-derived delta-8 THC.
Is Delta-10 Legal in Virginia?
Like delta-8, Virginia restricts hemp-derived delta-10 and all other THC isomers. You cannot legally sell, distribute, or manufacture delta-8 foods, beverages, or other related products under House Bill 30’s amendments and VDACS’ new ruling. However, state-licensed medical cannabis dispensaries can legally sell delta-10 products to users 21 and over.
Is CBD Legal in Virginia?
Yes. Cannabidiol (CBD) is legal to use, possess, distribute, sell, produce, and cultivate in Virginia. In order for CBD to be federally legal, it must be sourced from Farm Bill compliant hemp carrying up to the legal 0.3% THC limit.
CBD sourced from recreational and medical marijuana carrying above the legal 0.3% THC limit is legal under state law but still not legal on the federal level.
However, you cannot enter Virginia with marijuana-derived CBD or any other marijuana products despite its legality in the state.
Upcoming Legislation in Virginia that Could Change Legality of Delta-8?
While there’s no upcoming state legislation that could change delta-8’s legality in Virginia, the federal government and the Drug Enforcement Agency (DEA) are starting to close in.
The DEA issued an Interim Final Rule (IFR) in mid-2020 seeking to verify the federally legal status of delta-8 and other cannabinoids it perceives as “synthetically-derived”.
Why would delta-8 be perceived as synthetic? Delta-8 is often synthesized from CBD using chemicals under laboratory conditions via a structural isomerization process. This process takes CBD, makes slight alterations to its chemical structure, and converts it into delta-8.
If the DEA deems this process as synthetic, delta-8 will be seen as federally illegal under Schedule I of the Controlled Substances Act. As a result, some US states have already preemptively banned or restricted delta-8.
Closing Thoughts: The Future of Delta-8 in Virginia
Banning hemp-derived delta-8 and other synthetically derived compounds in food and beverages is annoying but not surprising. Recent delta-8 crackdowns and other related cannabis industry events mean many US states are weary of synthetically-derived cannabinoids. The good news is you can buy hemp-derived delta-8 products online and through physical stores — just not edibles.
Editor’s note: The article was updated on October 19, 2022 to reflect the recent policy changes for delta-8 products in Virginia.