Virginia legalized marijuana in 2021, and in 2023 passed legislation that essentially classifies all delta-8 THC products as marijuana.
You might think that this means that delta-8 THC would be available from the regulated dispensaries in the state, but unfortunately, in the two years since they legalized weed, they haven’t made it legal to sell it. Because of this, the delta-8 laws in Virginia basically make it impossible to legally buy it.
Here’s what you need to know about Virginia hemp law.
Is Delta-8 THC Legal to Sell in Virginia?
Delta-8 THC is not legal to sell in Virginia, unless it contains less than 2 mg of any THC per package, or 25 times less THC than CBD.
While Virginia originally followed the Farm Bill’s blueprint for its hemp law, which is generally considered to have legalized delta-8 THC, the state has since made important changes. In particular, Senate Bill (SB) 903 took effect on July 1st, 2023, and essentially excludes all commercial delta-8 THC products from the definition of hemp.
In particular, the bill clarifies (page 2) that THC refers to any THC (including delta-8 and other isomers) and that any “hemp product” (page 1) has to have a THC concentration of less than 0.3% and no more than 2 mg per package (unless the CBD content is 25 times higher than the THC content). This means that basically every commercial delta-8 THC product cannot be sold as hemp.
It is possible that in the future, delta-8 THC could be sold as part of the state’s legal marijuana program, but at present there is no regulatory system allowing adult use marijuana sales.
RELATED: Which States Banned Delta-8 THC?
Delta-8 THC Legislation Timeline for Virginia
Delta-8 THC was legal as hemp in Virginia for a brief period from 2019 to 2022, and from July 2023, all delta-8 THC products can only be sold as part of the adult-use or medical marijuana industry.
In 2019, Virginia passed House Bill (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.
From July 1, 2022, the state restricted and regulated hemp-derived delta-8 in foods and beverages following the amendments made to §3.2-5145.5 of the Code of Virginia through HB 30.
The amendments made it illegal to sell any THC product intended for human consumption to anyone aged under 21. Additionally, it added new packaging, labeling, and testing guidelines for all products before going to market.
The Virginia Department of Agriculture and Consumer Safety (VDACS) issued a press release in June 2022, stating that delta-8 and other chemically-synthesized compounds are illegal food adulterants and not permitted in food and beverage products.
Manufacturers and producers also cannot offer the sale or sell a product “in a package that mimics a trademarked brand or another famous or identifying mark.” The Virginia Consumer Protection Act (VCPA) 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 received 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.
The Virginia Department of Agriculture and Consumer Safety
Finally, in April 2023, SB 903 (along with companion bill HB 2294) was signed into law, taking effect from July 1st, 2023. This imposes a cap of 2 mg per package for any industrial hemp product – in addition to the 0.3% limit – unless it contains 25 times more CBD than it does THC. This means that basically any commercial delta-8 THC product would have to be sold in either a medical or adult-use dispensary.
Can Delta-8 THC Be Added to Food?
Virginia considers any food that contains a chemically-synthesized cannabinoid to be “adulterated,” so delta-8 THC is not allowed to be added to food. Federal law is in agreement with this.
The VDACS announcement following the passage of HB 30 makes it clear that they consider any food containing a chemically-synthesized cannabinoid like delta-8 THC to be adulterated, and anyone who sells them is violating the Virginia Food and Drink Law. The federal Food, Drug and Cosmetic Act also prohibits delta-8 in food that will enter interstate commerce. In other words, both federal and Virginia law prohibit delta-8 THC in foods.
Can You Buy Delta-8 in Virginia?
CBD stores in Virginia have had to take delta-8 THC products off their shelves, and while there are some reports of delta-8 THC still being shipped to the state from online stores, it’s unclear whether it’s legal to buy from other states.
Technically, the law considers any product with more than 0.3% or 2 mg per package of THC to be marijuana. However, the state legalized marijuana possession in 2021 for adults aged 21 or over, so if you did get delta-8 THC in the state, you would not get in trouble for possessing it within allowed limits.
As of August 2023, VDACS fined seven stores for selling impermissible delta-8 THC products based on new authority under HB 2293, with fines reaching as high as $97,500.
Delta-8 Alternatives You Can Legally Buy in Virginia
Although marijuana is technically legal to possess and grow in Virginia, it is not currently possible to legally buy it. Since Virginia law specifically limits THCs, most products with delta-7, delta-8, delta-10 or hemp-derived delta-9 cannot be sold as hemp either. The only alternative that may be legal is HHC, since this is hexahydrocannabinol, not tetrahydrocannabinol.
Are There Age Restrictions on Delta-8 THC Products?
If any delta-8 THC product was allowed in Virginia, it could only be sold to adults aged 21 or over.
Can You Consume Delta-8 THC in Public in Virginia?
There is a $25 civil penalty if you consume delta-8 THC in public in Virginia. This is because essentially all delta-8 THC products are excluded from the definition of hemp in the state, so the rules for marijuana apply.
Can You Drive Under the Influence of Delta-8 THC in Virginia?
You can’t drive under the influence of delta-8 THC in Virginia, because the law forbids driving on any drug that impairs your ability to drive.
RELATED: Can Delta-8 THC Get You High?
Virginia’s driving while intoxicated law makes it clear that driving under the influence of any intoxicating drug, to the point where it impairs your ability to drive, is illegal. Unlike for alcohol, cocaine, methamphetamine and other drugs, there is no definite blood THC value you have to exceed to break the law, it’s purely based on impairment.
Punishment in the first instance includes a minimum $250 fine and license revocation for one year, as well as possibly having an ignition interlock fitted on your car.
Can You Travel to Virginia With Delta-8?
Virginia considers delta-8 THC products to be marijuana, so it’s better to avoid taking delta-8 with you to the state.
While the prevailing argument is that the 2018 Farm Bill legalized delta-8 THC at the federal level, Virginia considers anything with more than 2 mg of (any) THC per package to be marijuana. To complicate matters further, marijuana possession is legal for adults in Virginia, but you cannot take marijuana across state lines.
This makes the legality of taking delta-8 across state lines into Virginia pretty complicated. Overall, it’s safer to just leave your delta-8 in the state you’re traveling from, because law enforcement in Virginia may take the view that bringing delta-8 into the state is illegal.
Closing Thoughts: The Future for Delta-8 in Virginia
Virginia lawmakers have already restricted delta-8 THC in several ways, so it’s unlikely that any changes are on the horizon aside from at the federal level. Adult-use dispensaries are also unlikely to open in the next year.
There are two major things on the horizon for delta-8 THC in Virginia, but only one will likely make a difference. First, the upcoming 2023 Farm Bill is likely to clarify the situation around intoxicating cannabinoids and may make most delta-8 hemp products illegal at the federal level by limiting how they can be manufactured. However, in Virginia this won’t really make a difference because you can’t buy delta-8 anyway.
So will there be any way to buy delta-8 THC legally in Virginia? That depends strongly on whether the state is able to set up a system for actually selling the marijuana which is legal in the state. Unfortunately, Governor Youngkin has little interest in setting up recreational marijuana sales, and the only hope for the adult use market is if Democrats regain control of both chambers and get a bill to his desk.
The problem is getting Youngkin to sign it. Until then, black and gray markets retain control of the marijuana industry – and now the delta-8 industry – in the state.
