Virginia’s ‘Total THC’ Hemp Law Upheld by Fourth Circuit: What It Means for the Hemp Industry
By Neil Willner
Jan 14, 2025
On January 7, 2025, the Fourth Circuit Court of Appeals issued its long-awaited decision in Northern Virginia Hemp & Agriculture v. Commonwealth of Virginia, holding that Virginia could implement “total THC” standards for hemp products. The plaintiffs challenged Virginia’s Senate Bill 903 (SB 903), which regulates hemp sales based on total tetrahydrocannabinol (THC) concentration, including delta-8 THC and other THC isomers, rather than solely delta-9 THC. The appellate court affirmed the lower court’s holding, clarifying the scope of federal preemption under the 2018 Farm Bill and reaffirming states’ authority to implement stricter THC regulations. Read on for a detailed breakdown of the court’s decision and its implications for the future of the hemp industry.
Background: The Debate Over “Total THC” Standards
In response to the growing number of unregulated, intoxicating hemp products, Virginia enacted Senate Bill 903 (SB 903) to regulate the production and sale of hemp-derived products based on their total tetrahydrocannabinol (THC) concentration. Unlike the 2018 Farm Bill, which limits only delta-9 THC to 0.3%, SB 903 adopts a “total THC” standard, encompassing delta-8 THC and other THC isomers. This more restrictive approach reflects Virginia’s aim to address public health and safety concerns associated with intoxicating hemp derivatives.
The plaintiffs, including a hemp producer and retailer, challenged SB. 903, asserting that the 2018 Farm Bill preempted Virginia’s stricter regulations. They argued that the Farm Bill established a uniform federal standard, limiting the state’s ability to impose additional restrictions. Additionally, the plaintiffs contended that the law violated the Dormant Commerce Clause by unduly burdening interstate commerce in federally compliant hemp products. A Virginia district court denied the plaintiffs’ motion for a preliminary injunction, prompting the plaintiffs to appeal.
The Court’s Preemption Analysis
The Fourth Circuit firmly rejected the plaintiffs’ preemption argument, providing a detailed analysis of preemption principles, addressing express, field, and conflict preemption:
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Express Preemption: The court found that the 2018 Farm Bill does not explicitly prohibit states from regulating hemp more strictly than federal law. Basing their express preemption arguments on statutory notes, the plaintiffs pointed to the Farm Bill's language noting that states cannot prohibit the transport of federally compliant hemp through their states as evidence of preemption. The court disagreed, clarifying that this provision only prevents states from impeding interstate shipment, not from regulating hemp product sales within their borders. Importantly, the court also emphasized that the 2018 Farm Bill explicitly allows states to regulate hemp production more stringently than federal law, contradicting the plaintiffs' claim of express preemption.
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Field Preemption: The court also rejected the argument that the 2018 Farm Bill comprehensively regulated the field of hemp to the exclusion of state regulation. The court highlighted that the 2018 Farm Bill includes a provision that allows states to submit plans to the Secretary of Agriculture and establish their own regulatory systems for hemp production and to regulate more stringently. This allowance for state-specific regulatory plans clearly indicates that Congress did not intend to occupy the entire field of hemp regulation.
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Conflict Preemption: Finally, the court addressed the plaintiffs’ conflict preemption argument, finding that SB 903 does not conflict with the 2018 Farm Bill's goals. The court emphasized that the Farm Bill was not intended to create a national market for all hemp products but rather to permit the interstate commerce of hemp with delta-9 THC concentrations below 0.3%. The court noted that Virginia's total THC standard does not prevent the interstate transportation of compliant hemp, nor does it impede federal law. It simply regulates the sale of hemp products within the state, a power reserved to the states.
Why This Decision Matters for the Hemp Industry
The Fourth Circuit’s ruling has several important takeaways for the hemp industry:
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States Have Broad Regulatory Power: The Northern Virginia Hemp decision affirms that states have substantial authority to regulate hemp within their borders. Given the disparity of hemp regulations across the country, the industry will need to continue navigating a patchwork of state laws without a uniform standard.
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Total THC Standards are Likely to be Upheld: The court's approval of Virginia’s total THC standard suggests that similar state laws regulating all forms of THC, not just delta-9, are likely to withstand preemption challenges. Indeed, we have seen over a dozen similar actions across the country in states like Arkansas, Alaska, Indiana, Hawaii, South Dakota, Iowa, New York, Wyoming, Tennessee, New Jersey, Louisiana, California, and Washington, DC. While not binding, the Fourth Circuit’s decision provides strong precedent supporting states’ ability to enact stricter hemp regulations than federal law permits. To that end, the State of Arkansas, currently appealing a hemp preemption case in the Eighth Circuit, has informed the court of the Fourth Circuit’s decision in Northern Virginia Hemp, which rejected similar preemption challenges. Additionally, the State of Wyoming, which is currently the defendant in an appeal on a hemp preemption case in the Tenth Circuit, also filed a letter with the court about the Northern Virginia Hemp decision.
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Importance of State-Level Monitoring: This decision affirms just how critical it is to monitor state legislative activities and judicial decisions to understand the ever-evolving hemp regulatory landscape.
The Northern Virginia Hemp decision is a crucial development in the legal framework of hemp regulation, underscoring the power of states to implement stricter regulations on hemp products than federal law, particularly concerning total THC concentration.
Stay Informed!
Keeping up with the latest state and federal regulations on products containing hemp-derived cannabinoids can be challenging as the hemp industry continues to evolve. The knowledgeable hemp team at Vicente LLP is always monitoring developments in hemp laws across the United States. If you have any questions about hemp-derived THC state regulations or hemp law in general, don’t hesitate to contact us today!
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