Virginia Healthy Alternatives Association Guide for Members

Recent Changes to Virginia Law Regarding Hemp-Derived Products Containing THC

On June 1, 2022 the Virginia General Assembly approved the conference committee report of House Bill 30 which dictates the Commonwealth’s budget for Fiscal Years 2023-2024. Included in this bill, which still must be approved by the Governor, is language to amend several sections of the Code of Virginia related to hemp-derived products that contain tetrahydrocannabinol (THC).

There are three primary changes that members of the Virginia Healthy Alternatives Association (VHAA) should be aware of, and each of these changes will be implemented at different times:

1. New Legal Requirements as of July 1, 2022
2. An executive branch workgroup to study this issue further over this summer
3. A regulatory process that will be undertaken by the Virginia Department of Agriculture and Consumer Services (VDACS) that will begin later this year

New Legal Requirements as of July 1, 2022

The most pressing new requirements that are relevant to VHAA members are found in changes to Virginia’s Consumer Protection Act. Violations of these new laws could result in significant civil penalties up to $2,500 per violation. The requirements below only apply to those products which contain THC. Cannabinoid products that do not contain any THC are not included.

These changes are as follows:

• You may not sell or offer for sale any product that contains THC and that is intended for human consumption to any person under the age of 21. This includes both edible products and smokeable or vapeable products.
• You may not sell or offer for sale any product that contains THC and is intended for human consumption unless it is contained in child-resistant packaging, which means it is specially designed or constructed to be significantly difficult for a typical child under five years of age to open and not to be significantly difficult for a typical adult to open and reseal. This also means that for any product intended for more than a single use or that contains multiple servings, that the packaging is resealable. This includes both edible products and smokeable or vapeable products.
• You may not sell or offer for sale any product that contains THC and that is intended for human consumption unless it meets several new requirements with respect to labeling. The label must be in English and have a font no smaller than 1/16 of one inch. This includes both edible products and smokeable or vapeable products.
  • The label must state that the product contains THC and that it may not be sold to any person under the age of 21.
  • The label must also include a list of all ingredients included in the product.
  • The label must include how much of the product constitutes one single serving.
  • Finally, the label must contain both the total percentage and number of milligrams of THC that are contained in each package and the number of milligrams contained in each serving.
• You may not sell or offer for sale any product that contains THC and that is intended for human consumption unless each product is accompanied by a certificate of analysis that is produced by an independent laboratory that is accredited pursuant to standard ISO/IEC 17025 of the International Organization of Standardization by a third-party accrediting body. This includes both edible products and smokeable or vapeable products.
  • This certificate must state the THC concentration of the substance (product) itself or the THC concentration of the batch from which the substance (product) originates.
  • In many cases, these certificates of analysis are linked to each label of the individual product via some sort of QR code, batch number, or other identifying feature that would allow a consumer to easily access the information.
• You may not manufacture, offer for sale at retail, or sell at retail an industrial hemp extract, a food containing an industrial hemp extract, or a substance containing THC if they are in the shape of a(n):
  • Human
  • Animal
  • Vehicle
  • Fruit
• You may not sell or offer for sale any product that contains THC and that is intended for human consumption if such product is packaged in a container or wrapper that has a protected trademark, trade name, or famous mark as defined in federal law. This includes both edible products and smokeable or vapeable products.
  • Furthermore, the package cannot contain another identifying mark, imprint, or device, or any likeness of another company.
    • An example of this would be an edible cookie product that is packaged in a way that is reminiscent of or similar to “Chips Ahoy!”. The colors, fonts, and other identifying characteristics cannot be meant to copy or represent Nabisco and Mondelez International’s trademark on “Chips Ahoy!”.

Summer 2022 Work Group

The legislation also mandates that the Secretary of Agriculture and Forestry convene a taskforce to study the issue of hemp-derived products and other substances containing THC that are intended for human consumption, both orally and by inhalation, and relevant laws and regulations. The Secretary has broad authority to set up this taskforce and determine its membership, structure, and topics, but it must include the following:

• Secretary of Public Safety and Homeland Security
• Secretary of Health and Human Resources
• Department of Agriculture and Consumer Services
• Office of the Attorney General
• Department of Forensic Sciences
• Cannabis Control Authority

The Secretary can also name other stakeholders to this group, and the VHAA has communicated its interest in serving to the Secretary.

Other stakeholders will likely include the medical cannabis industry, other cannabis legalization advocates, the agriculture community, law enforcement, substance use and addiction experts, and child safety experts.

The Secretary must report the findings of the taskforce to the General Assembly and the Governor by November 15, 2022, so we anticipate the group will be formed quickly and meet this summer and this fall.

VDACS Regulatory Process

The new law also directs the Board of Agriculture and Consumer Services to develop specific requirements under its authority within Virginia’s Food and Drink Law. These requirements are very similar to those listed in the Consumer Protection Act but will add some additional specificity to the packaging and labeling requirements for an industrial hemp extract intended for human consumption or a food containing such extract that contains THC. This does not include those products consumed by inhalation. These regulations will likely be final as of July, but VHAA will have an opportunity to review them prior to the meeting when VDACS posts them online. These changes should directly reflect the requirements listed below, which are the same requirements that are becoming effective on July 1 via the Consumer Protection Act.

• The label must state that the product contains THC and may not be sold to any person under the age of 21.
• The label must include a listing of all ingredients included in the product.
• The label must include how much of the product constitutes one single serving.
• Finally, the label must contain both the total percentage and number of milligrams of THC that are contained in each package and the number of milligrams of THC contained in each serving.

It will be up to the Board to determine the various requirements to meet these labeling standards. Furthermore, the Board has broad discretion over any and all other potential labeling requirements. The four bullet points above are simply the minimum that must be included.

Once this law becomes effective, VDACS anticipates the Board will consider amending the pending Regulations Governing the Manufacturing and Sale of Products that Contain Industrial Hemp Extracts Intended for Human Consumption (2 VAC 5-595) to include the required labeling regulations at its meeting in July.

VHAA intends to participate in this regulatory process by providing input and public comments to the Board as appropriate. We also anticipate that the discussions of the taskforce mentioned above will guide the Department and the Board’s decision-making process.

Finally, language in House Bill 30 clarifies that any person that sells or offers for sale (i) an industrial hemp extract, as that term is defined in the Food and Drink Law, or (ii) a food containing an industrial hemp extract is subject to the provisions of the Food and Drink Law and regulations adopted pursuant thereto.  If you are selling an industrial hemp extract intended for oral consumption or a food containing such industrial hemp extract and you have not been inspected by VDACS’s Food Safety Program, you can obtain an application for a retail food establishment inspection here: https://www.vdacs.virginia.gov/pdf/retail_food_establishment_application.pdf

This means that any business selling these products will need to quickly fill out this application and get into the queue to be inspected by VDACS if you have not done this already. This does not apply if you are only selling smokeable or vapeable products.