Federal Judge Denies Aattempt to Block Virginia’s Toughened Hemp Law

A sampling of hemp products was inspected by the Virginia Department of Agriculture and Consumer Services as part of a crackdown on hemp-based edibles. (Photos courtesy of VDACS)

A federal judge in Northern Virginia rejected an effort to block a new Virginia law imposing stricter limits on hemp products that contain intoxicating amounts of THC.

The initial opinion issued Monday denied a group of hemp businesses’ request for an injunction that would have prevented state officials from enforcing the law, meaning the new rules remain in place as the lawsuit progresses.

The controversial bill approved earlier this year was aimed at cracking down on edibles and other products containing delta-8, a hemp-derived marijuana alternative that had become widely available in smoke shops across Virginia. The law came with stiff fines for retail businesses that continue to sell products that exceed total THC limits covering both natural and synthetic forms of the compound that gets cannabis users high.

U.S. District Judge Leonie M. Brinkema indicated she was unconvinced by arguments Virginia had overstepped its authority to regulate hemp in a way that conflicted with federal law and interfered with interstate commerce.

“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 in a 27-page opinion. “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 judgments.”

Lawsuit seeks to block Virginia’s stricter hemp laws

The ruling doesn’t end the lawsuit entirely, but it signals the hemp industry is facing an uphill battle as it tries to fight the new law.

The businesses that brought the suit are Northern Virginia Hemp and Agriculture, a retailer that says it lost 90% of its sales due to the new law, and a North Carolina-based company, Franny’s Farmacy, that says it’s now prohibited from shipping its products into or through Virginia. Rose Lane, a private citizen who says the law has blocked her from acquiring delta-8 to ease her arthritis, is also a plaintiff in the case.

The lawsuit attacked the hemp law from several angles, arguing broadly that because the federal government legalized industrial hemp in 2018, Virginia had effectively overruled federal law by banning certain hemp products.

Brinkema disagreed, concluding that federal hemp laws aren’t so sweeping that they prevent states from taking stricter or more specific action to regulate or restrict some forms of hemp.

“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.”

The judge was also unswayed by claims dealing with interstate commerce, pointing out that Virginia law still allows hemp businesses to “transport federally compliant hemp products through Virginia.” She said Franny’s Farmacy’s claims were partly hypothetical because the company “has not alleged that any of its shippers have actually had to detour around Virginia.”

Though some may question a law that “threatens to disrupt the existing practices of hemp industry participants,” Brinkema wrote, hemp businesses are free to adhere to the new rules, buy “raw product” from outside Virginia to continue to make delta-8 or “withdraw from Virginia’s market entirely.”

When the new law took effect July 1, some hemp retailers began getting hit with six-figure fines to force them to comply with the new rules.

Representatives for the businesses that filed the legal challenge did not immediately respond to requests for comment Tuesday morning.

This is a breaking story that will be updated as more information becomes available.

by Graham Moomaw, Virginia Mercury

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