Virginia lawmakers pass bill to get tougher on hemp that gets you high

Both chambers of the Virginia General Assembly voted Friday to pass a bill to toughen regulations on hemp-derived products that contain intoxicating THC through a more robust permitting system and stricter labeling rules.

Retail marijuana sales will remain illegal under the proposed law. Proponents of the bill called it a necessary first step toward cracking down on largely unregulated THC products, including increasingly common delta-8 edibles, that have created safety and consumer protection concerns.

“I think this will go a long way in making sure that our communities are safe and that folks are buying what they purport to buy,” House of Delegates Majority Leader Terry Kilgore, R-Scott, said before his chamber approved the bill 85-9.

The proposal’s support was more mixed in the state Senate, where several Democrats warned it would lead to an even more convoluted regulatory scheme for cannabis. Noting the bill seemed to split regulatory authority between the Virginia Department of Agriculture and Consumer Services (VDACS) and the new Virginia Cannabis Control Authority, Sen. Scott Surovell, D-Fairfax, compared it to having one agency regulating beer and a different agency regulating liquor.

“This is a first step toward a complete mess,” Surovell said as the bill passed the Senate 23-17. “And the reason we’re doing this is because somebody upstairs doesn’t want to talk about it.”

Gov. Glenn Youngkin backed the hemp bill, but he has studiously avoided wading into the debate over whether the state should fully legalize marijuana after Democrats made Virginia the first state in the South to allow possession of small amounts of weed. State law also allows Virginians to grow up to four marijuana plants at home. But outside of the state’s medical cannabis program, there’s still no legal way to purchase marijuana.

Because state and federal law on industrial hemp has loosened, enterprising store owners have started selling hemp-derived products made to be a synthetic stand-in for marijuana, offering similar but typically milder highs. After several reports of children being sickened by those products, Youngkin and Attorney General Jason Miyares have both taken steps to try to limit the availability of intoxicating or mislabeled products.

An image of a Delta-8 THC product was included in a presentation to a state hemp task force by the Blue Ridge Poison Center.

Sen. Emmett Hanger, R-Augusta, said he understood some in the hemp industry weren’t going to be happy with the bill because they’ll have to stop selling the type of products policymakers want to restrict.

“We’re putting in place a mechanism to get them off the shelves,” Hanger said.

The bill, which is expected to be signed by Youngkin since it originated with the administration, requires all businesses selling “an industrial hemp extract or food containing an industrial hemp extract” to have a valid permit from the state. According to the proposed law, those products can only contain up to 0.3% THC and two milligrams of THC per package.

The new labeling rules require clearer disclosure of what’s in each product, including listing the percentage and milligrams of THC per package and serving. They would also prohibit products from being marketed as curing, treating, or preventing disease.

“Consumers deserve to know that what’s on the label is what’s actually in the product,” said JM Pedini, executive director of pro-legalization group Virginia NORML. “These bills will provide that transparency.”

The Virginia Department of Agriculture and Consumer Services has had most of the authority to regulate hemp products, which are sold at a variety of retail businesses, including grocery stores, pharmacies, and vape shops. However, because the agency focuses largely on food safety, there were oversight gaps with smoke shops offering edibles that didn’t fit neatly into regulations on food sales. The bill aims to address those gaps by empowering the agency or the attorney general’s office to ask the Virginia Cannabis Control Authority to look into potential violations that might fall outside the purview of VDACS.

Critics of the bill say state legislators are taking an overbroad approach to an industry they don’t fully understand. The new law, they say, could cause hemp businesses to close or refuse to comply with regulations they see as unworkable.

Greg Habeeb, a lobbyist for the Virginia Cannabis Association, said the “arbitrary” restriction limiting products to two milligrams of THC per package (marijuana edibles commonly contain five to 20 milligrams per serving) could gut the industry despite having “no connection to intoxication.”

“Rather than a thoughtful narrow approach to try to address a specific public safety concern, what this [bill] is likely to do is cause most hemp businesses in Virginia to simply leave the state or close the doors,” Habeeb said.

Other skeptics pointed to more specific issues with the bill, including a rule that would require the addition of “a bittering agent” to all topical hemp products like ointments and creams to discourage anyone who might consider eating them.

“There’s CBD that people use for lip balms,” said Sen. Jeremy McPike, D-Prince William. “There’s so many complications and errors in this bill.”

House Minority Leader Don Scott, D-Portsmouth, said he would “begrudgingly” vote for the bill even though he doubted the regulatory scheme would work as advertised.

“We’ll be watching,” Scott said. “And I think that’s why God created the next session. If it doesn’t work correctly, we’re going to have to put it where it belongs.”

Though some Democrats have said Republicans are to blame for the state’s inability to move forward with a regulated retail marketplace for real-deal marijuana, Republicans have argued Democrats created the problem by passing a slapdash marijuana legalization bill and then losing power in the 2021 elections before they could finish it.

Senate Minority Leader Tommy Norment, R-Williamsburg, called the 2021 marijuana bill a “disgraceful” attempt at legislating. The “ultimate solution” to the problems Virginia is now facing, he said, would be to repeal it.

“These issues would become moot,” Norment said.

Sen. Adam Ebbin, D-Alexandria, said the proper solution would be allowing retail marijuana dispensaries, which he said would reduce demand for “cheap substitutes at gas stations and convenience stores.”

by Graham Moomaw, Virginia Mercury

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