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In early April, Virginia Governor Ralph Northam signed Senate Bill 918, approving industrial hemp extract, such as cannabidiol (“CBD”), as a food, subjecting it to applicable laws and regulations. The bill defines “food” as “any article that is intended for human consumption. . . [and] does not mean drugs as defined in [Va. Code] § 54.1-3401.” The bill establishes requirements for the production and manufacture of hemp extracts and authorizes the Virginia Board of Agriculture and Services to adopt regulations regarding contaminant tolerances, labeling, and batch testing. Virginia is just the latest of many states that have taken steps to regulate industrial hemp and its extracts in the wake of the 2018 Farm Bill, which legalized industrial hemp at the federal level; however, Virginia joins those states classifying CBD as a food or ingredient, which appears to be contrary to the Food and Drug Administration’s (“FDA”) view of federal law governing the subject.
The 2018 Farm Bill defined hemp as cannabis and its derivatives containing no more than 0.3 percent of the psychoactive compound delta-9-tetrahydrocannabinol (“THC”). The law gave the United States Department of Agriculture (“USDA”) the authority to regulate its production, but preserved the FDA’s authority over hemp products. In October 2019, USDA issued an interim final rule establishing rules and regulations governing the production of hemp, but FDA has not issued a rule regarding hemp products. In the absence of federal regulation, states, and in some instances localities, are taking actions to regulate the product.
While FDA has not promulgated regulations regarding CBD, it has released a statement saying that “it’s unlawful under the FD&C Act to introduce food containing added CBD or THC into interstate commerce, or to market CBD or THC products as, or in, dietary supplements, regardless of whether the substances are hemp-derived. This is because both CBD and THC are active ingredients in FDA-approved drugs and were the subject of substantial clinical investigations before they were marketed as foods or dietary supplements.”
Some states, such as Washington, California, and North Carolina have made it clear that until CBD is an FDA approved food additive, state law also prohibits its use in food and beverages. Some localities have followed suit, most notably, New York City’s Department of Health banned food products containing CBD, resulting in the confiscation of edible CBD products. Other states, including Colorado and Florida, consider hemp extract to be a food ingredient and subject to applicable regulations. Regardless of how states have chosen to regulate hemp products, reports make it clear that state regulators see a need to ensure some regulation of these products are in place.
Please note that the legal status of marijuana is not indicative of a state’s stance on the regulation of hemp extracts. As an example, both Washington and California have legalized recreational marijuana use but prohibit hemp extracts in food and beverages. While pending legislation in California suggests this is subject to change in that state, producers and manufacturers of hemp extract should be careful not to assume that the legal status of marijuana is in any way connected to a state’s regulation of hemp extracts.
So far, FDA’s CBD-related actions have been focused on health-related marketing claims and it remains to be seen how, or if, the federal government will respond to the states’ decisions regarding regulation of hemp extracts. In the meantime, any manufacturers or producers of hemp extract should remain aware of applicable state guidance on the issue.In early April, Virginia Governor Ralph Northam signed Senate Bill 918, approving industrial hemp extract, such as cannabidiol (“CBD”), as a food,
Virginia hemp law
If you plan to grow hemp in 2021, you will need a VDACS-issued Industrial Hemp Grower Registration.
You will NOT need a USDA-issued Hemp License.
VDACS will distribute additional information regarding the 2021 growing season in early-spring 2021.
USDA’s Interim Final Rule
On Jan. 15, 2020, VDACS submitted Virginia’s Plan to Regulate Hemp Production to USDA for review and approval. On Feb. 18, 2020, USDA provided VDACS with its feedback on Virginia’s Plan to Regulate Hemp Production and requested that VDACS make specific revisions and resubmit its plan. VDACS will evaluate USDA’s final Hemp Production Rule, once it is published, before responding.
The federal government recently delayed the repeal of the authority under which the VDACS is currently administering an agricultural pilot program to study the growth, cultivation, and marketing of industrial hemp. As such, VDACS is able to continue as the primary regulator of hemp production in Virginia until September 30, 2021, and VDACS has advised the USDA that VDACS will continue to operate a hemp agricultural pilot program that meets the requirements outlined in the 2014 federal Farm Bill through this date.
USDA Hemp License
You do not need a USDA Hemp License to grow hemp in Virginia.
2020 Hemp Growing Season In Virginia
The 2020 Appropriation Act increases the annual fee for the industrial hemp grower, processor, and dealer registrations. The General Assembly adopted this fee increase in an effort to help the Industrial Hemp Program become a self-sustaining program. Any registration application or renewal received by VDACS on or after July 1, 2020, must be accompanied by the new fee. Effective July 1, 2020, the fee to apply for or renew a registration is as follows:
Industrial Hemp Grower: $150
Industrial Hemp Processor: $200
Industrial Hemp Dealer: $250
Until Oct. 31, 2020, VDACS will administer a 2014 federal Farm Bill hemp program. During the 2020 growing season, VDACS will regulate hemp production much like it did during the 2019 growing season.
If you want to grow hemp in 2020:
- Apply for an Industrial Hemp Grower Registration. These are annual registrations that expire one year from the date of issuance. Please make sure to review the Registration Guide prior to submitting an application. There is no deadline to apply.
- Submit a planting report within 14 calendar days after planting.
- VDACS will select hemp production fields for sampling using a risk and random system. If your production field is selected, a VDACS inspector will contact you by the end of September 2020.
- As it has in previous years, VDACS will continue to assess compliance using a hemp crop’s post-decarboxylation delta-9 THC (aka Total THC). The THC concentration of your hemp crop may not exceed 0.3 percent Total THC.
VDACS will alert Registered Industrial Hemp Growers to any significant changes to the 2020 Industrial Hemp Program and will update this page accordingly.
- Virginia Cooperative Extension’s Hemp Webpage
- Recording of the March 2020 Industrial Hemp Grower Meeting hosted by Virginia Cooperative Extension
- Integrated Pest Management of Hemp in Virginia
Industrial Hemp Grower Registration
“Grower” means any person registered pursuant to subsection A of Va. Code § 3.2-4115 to plant, cultivate, or harvest industrial hemp.
To apply for an Industrial Hemp Grower Registration or to renew your Industrial Hemp Grower Registration, complete the application below. The application fee is $150.
Please click here for more information regarding the Industrial Hemp Grower Registration.
For information regarding how to obtain the coordinates for your production field(s), please click here.
Production Field Updates
To change or add a production field to your registration, complete the form below.
A Registered Industrial Hemp Grower must submit a planting report within 14 calendar days of planting seeds, clones, or cuttings. If you plant multiple times throughout the growing season, you will need to submit multiple planting reports.
If you do not plant industrial hemp on a production field stated on your registration, you must submit a planting report for that field by July 31.
A Registered Industrial Hemp Grower may wish to provide an “Agent Documentation” form to each person you intend to serve as your agent for the limited purpose of growing industrial hemp. You do not need to submit this form to VDACS.
The annual research report, previously required by the Virginia Industrial Hemp Law, is no longer required as of March 21, 2019.
Industrial Hemp Dealer Registration
“Dealer” means any person registered pursuant to subsection A of Va. Code § 3.2-4115 to deal in industrial hemp. “Dealer” does not include (i) a registered grower, (ii) a registered processor, or (iii) any person who buys industrial hemp for personal use or retail sale in Virginia. The Industrial Hemp Dealer Registration is not intended for a retail establishment selling a hemp product.
“Deal” means to buy industrial hemp grown in compliance with state or federal law and to sell such industrial hemp to a person who (i) processes industrial hemp in compliance with state or federal law or (ii) sells industrial hemp to a person who processes industrial hemp in compliance with state or federal law.
To apply for an Industrial Hemp Dealer Registration or to renew your Industrial Hemp Dealer Registration, complete the application below. The application fee is $250.
Please click here for more information regarding the Industrial Hemp Dealer Registration.
For information regarding how to obtain the coordinates for your dealership location(s), please click here.
To change or add a dealership to your registration, complete the form below.
A Registered Industrial Hemp Dealer may wish to provide an “Agent Documentation” form to each person you intend to serve as your agent for the limited purpose of dealing industrial hemp. You do not need to submit this form to VDACS.
Industrial Hemp Processor Registration
“Processor” means any person registered pursuant to subsection A of Va. Code § 3.2-4115 to convert industrial hemp into a hemp product. “Hemp product” means any finished product that contains industrial hemp, including rope, building materials, automobile parts, animal bedding, animal feed, cosmetics, oil containing an industrial hemp extract, or food or food additives for human consumption.
To apply for an Industrial Hemp Processor Registration or to renew your Industrial Hemp Processor Registration, complete the application below. The application fee is $200.
Please click here for more information regarding the Industrial Hemp Processor Registration.
For information regarding how to obtain the coordinates for your process site(s), please click here.
Process Site Updates
To change or add a process site to your registration, complete the form below.
A Registered Industrial Hemp Processor may wish to provide an “Agent Documentation” form to each person you intend to serve as your agent for the limited purpose of processing industrial hemp. You do not need to submit this form to VDACS.
Finding a Registered Industrial Hemp Dealer or Processor
Section 3.2-4115(D) of the Virginia Industrial Hemp Law provides that all records, data, and information filed in support of an industrial hemp grower, dealer, or processor registration application shall be considered proprietary and excluded from the provisions of the Virginia Freedom of Information Act (FOIA). Despite this exclusion from FOIA, some registered dealers or processors have requested that VDACS provide the public with certain information.
Please make sure to review the Registration Guide prior to submitting an application.
If your hemp product is intended for human consumption:
On July 15, 2019, the Commissioner of Agriculture and Consumer Services advised Registered Industrial Hemp Processors that the Northam Administration has directed VDACS to treat hemp-derived extracts intended for human consumption as approved food additives and to place qualifying Registered Industrial Hemp Processors under food safety inspection so that inspected and approved processors may manufacture a hemp-derived extract intended for human consumption.
Registered Industrial Hemp Processors who plan to produce a hemp-derived extract intended for human consumption should review VDACS’s Food Safety Program’s letter dated July 25, 2019, outlining the current policy directives and submit an application to operate as a Manufacturer of a Hemp-Derived Extract Intended for Human Consumption. Please contact VDACS’s Food Safety Program for additional information.
If your intended hemp-derived product is not an extract but is intended for human consumption, please contact VDACS’s Food Safety Program for additional information.
Please note that the requirements in Virginia’s Food and Drink Law do not pertain to the production or sale of topical products.
If you intend to distribute industrial hemp planting seed in Virginia, please review Virginia’s Seed Law and contact VDACS’s Agricultural Commodities Team for additional information on obtaining a Seed Dealers License.
If you intend to bring hemp clones or plants into Virginia, please contact VDACS’s Office of Plant Industry Services to determine whether a phytosanitary certificate is needed to do such.
VDACS has issued information to assist industrial hemp growers in identifying pesticide products that may be used on hemp crops grown in Virginia.
- Pesticide Use on Hemp (pdf)
Information regarding VDACS’s pesticide product registration process and currently registered pesticides is available here . Please contact VDACS’s Office of Pesticide Services if you have questions regarding pesticide use in Virginia.
Industrial Hemp Industry Development Work Group
Chapter 745 of the 2020 Acts of Assembly requires VDACS to convene a Work Group to assess the opportunities for development and manufacturing in the industrial hemp industry. The legislation establishes the membership of the Work Group and directs the Work Group to consider the following six areas in its assessment of opportunities for development and manufacturing in the industrial hemp industry: (i) federal and state requirements; (ii) key drivers and challenges; (iii) anticipated job growth and wage expectations; (iv) talent and skill requirements; (v) site and building needs; and (vi) manufacturing companies and supply chain requirements. If you have questions regarding this work group, please contact Stephen Versen, Program Manager, Office of Agriculture and Forestry Development, at [email protected]
Below are links to the Work Group’s agendas, minutes, and meeting recordings.Virginia hemp law If you plan to grow hemp in 2021, you will need a VDACS-issued Industrial Hemp Grower Registration. You will NOT need a USDA-issued Hemp License. VDACS will distribute ]]>