Defendant's Attorney: Attorney General of Virginia, et al.

Description: Alexandria, Virginia civil litigation lawyers represented the Plaintiffs who sought declaratory and other relief.


Virginia recognized it had a marijuana problem. For years, federal law has classified
marijuana as a controlled substance. But in the 2018 Farm Bill, Congress excluded
“hemp”—which it defined as Cannabis sativa L. and any part of that plant “with a delta-9
tetrahydrocannabinol concentration of not more than 0.3 percent,”—from the definition of
marijuana. 7 U.S.C. § 1639o. Yet, many hemp products that contain less than 0.3% delta-
9 tetrahydrocannabinol1 can still be psychoactive. For example, delta-8 THC, especially
when combined with delta-9 THC, can be quite intoxicating. Even so, after the 2018 Farm
Bill, such products are no longer controlled under federal law, as long as they contain no
more than 0.3 percent delta-9 THC.

Following the 2018 Farm Bill, federal agencies warned about the psychoactive
effects of products with other strains of THC that are not federally banned. Virginia
lawmakers received these warnings. They also received reports about children in Virginia
acquiring and consuming these products. With this information, they took action, passing
Virginia Senate Bill 903, which was signed into law in 2023. That bill, in part, regulates
the retail sale of hemp products based on their “total tetrahydrocannabinol concentration,”
regardless of whether the THC is delta-9, delta-8 or another natural or synthetic form. Va.
Code Ann. §§ 3.2-4112, 3.2-5145.1 (emphasis added). S.B. 903 limits the concentration of
total THC in hemp offered for retail sale to no more than 0.3%. Id. Also, S.B. 903 prohibits
Virginia “processors” from selling hemp products—even those complying with federal
law—to a person the processor knows or has reason to know will use the industrial hemp
or extract in a substance that contains a total THC concentration of more than 0.3%. Id. §
3.2-4116. As a result, certain hemp products that are legal under federal law—for example,
those containing less than 0.3% delta-9 THC but more than 0.3% delta-8 THC—cannot
lawfully be used for many purposes under Virginia law.

Three plaintiffs—a Virginia citizen who used now-outlawed hemp products to
relieve arthritis pain, a Virginia entity that made and sold hemp products to the public and
an out-of-state entity that produced and sold hemp products (and also runs a retail
subsidiary with a location in Virginia)—sued the Commonwealth of Virginia to challenge
S.B. 903.2 They claimed that the 2018 Farm Bill preempts S.B. 903’s more restrictive total
THC standard and its prohibition on Virginia processors selling hemp products to
purchasers they know or have reason to know will use the products in violation of
Virginia’s total THC standard. They also claim the Virginia law violates the Dormant
Commerce Clause of the United States Constitution. After they moved for a preliminary
injunction on these grounds, the district court denied the motion on the merits. But in doing
so, it also appears to have concluded that the plaintiffs did not plead sufficient facts
showing that they were regulated hemp processors under Virginia law and thus lack
standing to challenge S.B. 903’s provision preventing Virginia processors from selling
hemp products to others who will use those products in violation of the total THC standard.
This interlocutory appeal of the denial of the motion for preliminary injunction followed.

Outcome: The plaintiffs seek the extraordinary relief of a preliminary injunction enjoining
parts of state statutes designed to promote the health and safety of its citizens. But as the
district court properly found, they have not shown that they are entitled to such relief. Nor
have they shown any abuse of discretion by the court in assessing and analyzing the
equitable factors. Accordingly, we affirm the order of the district court denying plaintiffs’
motion for a preliminary injunction as to S.B. 903’s total THC standard. We vacate the
portions of the district court order that deny relief on the merits with respect to the sales
restriction provision and remand to the district court to dismiss the relevant claims without
prejudice, and for further proceedings consistent with this opinion.

Plaintiff's Experts:

Defendant's Experts:

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