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Code of Virginia
Title 3.2. Agriculture, Animal Care, and Food
Chapter 41.1. Industrial Hemp
11/28/2021

Chapter 41.1. Industrial Hemp.

§ 3.2-4112. Definitions.

As used in this chapter, unless the context requires a different meaning:

"Cannabis sativa product" means a product made from any part of the plant Cannabis sativa with a concentration of tetrahydrocannabinol that is greater than that allowed by federal law.

"Deal" means to temporarily possess industrial hemp grown in compliance with state or federal law that (i) has not been processed and (ii) was not grown and will not be processed by the person temporarily possessing it.

"Dealer" means any person who is registered pursuant to subsection A of § 3.2-4115 to deal in industrial hemp. "Dealer" does not include a retail establishment that sells or offers for sale a hemp product.

"Dealership" means the location at which a dealer stores or intends to store the industrial hemp in which he deals.

"Federally licensed hemp producer" means a person who holds a hemp producer license issued by the U.S. Department of Agriculture pursuant to 7 C.F.R. Part 990.

"Grow" means to plant, cultivate, or harvest a plant or crop.

"Grower" means any person registered pursuant to subsection A of § 3.2-4115 to grow industrial hemp.

"Hemp product" means a product, including any raw materials from industrial hemp that are used for or added to a food or beverage product, that contains industrial hemp and has completed all stages of processing needed for the product.

"Industrial hemp" means any part of the plant Cannabis sativa, including seeds thereof, whether growing or not, with a concentration of tetrahydrocannabinol that is no greater than that allowed by federal law. "Industrial hemp" includes an industrial hemp extract that has not completed all stages of processing needed to convert the extract into a hemp product.

"Process" means to convert industrial hemp into a hemp product.

"Processor" means a person registered pursuant to subsection A of § 3.2-4115 to process industrial hemp.

"Process site" means the location at which a processor processes or intends to process industrial hemp.

"Production field" means the land or area on which a grower or a federally licensed hemp producer is growing or intends to grow industrial hemp.

2015, cc. 158, 180; 2018, cc. 689, 690; 2019, cc. 653, 654; 2021, Sp. Sess. I, c. 110.

§ 3.2-4113. Production of industrial hemp lawful.

A. It is lawful for a grower, his agent, or a federally licensed hemp producer to grow, a dealer or his agent to deal in, or a processor or his agent to process industrial hemp in the Commonwealth for any lawful purpose. No federally licensed hemp producer or grower or his agent shall be prosecuted under Chapter 11 (§ 4.1-1100 et seq.) of Title 4.1 or § 18.2-247, 18.2-248, 18.2-248.01, 18.2-248.1, or 18.2-250 for the possession or growing of industrial hemp or any Cannabis sativa with a tetrahydrocannabinol concentration that does not exceed the total delta-9 tetrahydrocannabinol concentration percentage established in federal regulations applicable to negligent violations located at 7 C.F.R. 990.6(b)(3). No dealer or his agent or processor or his agent shall be prosecuted under Chapter 11 (§ 4.1-1100 et seq.) of Title 4.1 or § 18.2-247, 18.2-248, 18.2-248.01, 18.2-248.1, or 18.2-250 or issued a summons or judgment for the possession, dealing, or processing of industrial hemp. In any complaint, information, or indictment, and in any action or proceeding brought for the enforcement of any provision of Article 1 (§ 18.2-247 et seq.) of Chapter 7 of Title 18.2 or the Drug Control Act (§ 54.1-3400 et seq.), it shall not be necessary to negate any exception, excuse, proviso, or exemption contained in this chapter or the Drug Control Act, and the burden of proof of any such exception, excuse, proviso, or exemption shall be on the defendant.

B. Nothing in this chapter shall be construed to authorize any person to violate any federal law or regulation.

C. No person shall be prosecuted under Chapter 11 (§ 4.1-1100 et seq.) of Title 4.1 or § 18.2-247, 18.2-248, 18.2-248.01, 18.2-248.1, or 18.2-250 for the involuntary growth of industrial hemp through the inadvertent natural spread of seeds or pollen as a result of proximity to a production field, dealership, or process site.

2015, cc. 158, 180; 2016, cc. 61, 170; 2018, cc. 689, 690; 2019, cc. 653, 654; 2021, Sp. Sess. I, cc. 110, 550, 551.

§ 3.2-4114. Regulations.

A. The Board may adopt regulations pursuant to this chapter as necessary to register persons to grow, deal in, or process industrial hemp or implement the provisions of this chapter.

B. Upon publication by the U.S. Department of Agriculture in the Federal Register of any final rule regarding industrial hemp that materially expands opportunities for growing, producing, or dealing in industrial hemp in the Commonwealth, the Board shall immediately adopt amendments conforming Department regulations to such federal final rule. Such adoption of regulations by the Board shall be exempt from the provisions of the Administrative Process Act (§ 2.2-4000 et seq.).

2015, cc. 158, 180; 2018, cc. 689, 690; 2019, cc. 653, 654; 2020, c. 620.

§ 3.2-4114.1. Repealed.

Repealed by Acts 2019, cc. 653 and 654, cl. 2, effective March 21, 2019.

§ 3.2-4114.2. Authority of Commissioner; notice to law enforcement; report.

A. The Commissioner may charge a nonrefundable fee not to exceed $250 for any application for registration or renewal of registration allowed under this chapter. The Commissioner may charge a nonrefundable fee for the tetrahydrocannabinol testing allowed under this chapter. All fees collected by the Commissioner shall be deposited in the state treasury.

B. The Commissioner shall adopt regulations establishing a fee structure for registration. With the exception of § 2.2-4031, no provision of the Administrative Process Act (§ 2.2-4000 et seq.) or public participation guideline adopted pursuant thereto shall apply to the adoption of any regulation pursuant to this subsection. However, prior to adopting any regulation pursuant to this subsection, the Commissioner shall review the recommendation of an advisory panel that shall consider the economic impact of any proposed fee amount on the Commonwealth's industrial hemp industry. The advisory panel shall, at a minimum, include (i) an agribusiness representative or organization, (ii) a farming representative or organization, and (iii) a hemp industry representative or organization. Prior to adopting any regulation pursuant to this subsection, the Commissioner shall publish a notice of opportunity to comment in the Virginia Register of Regulations and post the action on the Virginia Regulatory Town Hall. Such notice shall contain (a) a summary of the proposed regulation; (b) the text of the proposed regulation; and (c) the name, address, and telephone number of the agency contact person responsible for receiving public comments. Such notice shall be made at least 60 days in advance of the last date prescribed in such notice of submittals of public comment. The legislative review provisions of subsections A and B of § 2.2-4014 shall apply to the promulgation or final adoption process of regulations pursuant to this subsection. The Commissioner shall consider and keep on file all public comments received for any regulation adopted pursuant to this subsection.

C. The Commissioner may establish an application period for a registration or renewal of registration allowed under this chapter.

D. The Commissioner shall notify the Superintendent of State Police of each registration issued by the Commissioner under this chapter and each license submitted to the Commissioner by a federally licensed hemp producer.

E. The Commissioner shall forward a copy or appropriate electronic record of each registration issued by the Commissioner under this chapter and each license submitted to the Commissioner by a federally licensed hemp producer to the chief law-enforcement officer of the county or city where industrial hemp will be grown, dealt, or processed.

F. The Commissioner may monitor the industrial hemp grown, dealt, or processed by a person registered pursuant to subsection A of § 3.2-4115 and provide for random sampling and testing of the industrial hemp in accordance with any criteria established by the Commissioner and at the cost of the grower, dealer, or processor, for compliance with tetrahydrocannabinol limits and for other appropriate purposes established pursuant to § 3.2-4114. In addition to any routine inspection and sampling, the Commissioner may inspect and sample the industrial hemp at any production field, dealership, or process site during normal business hours without advance notice if he has reason to believe a violation of this chapter is occurring or has occurred.

G. The Commissioner may require a grower, dealer, or processor to destroy, at the cost of the grower, dealer, or processor and in a manner approved of and verified by the Commissioner, any Cannabis sativa that the grower grows, in which the dealer deals, or that the processor processes that has been tested and is found to have a concentration of tetrahydrocannabinol that is greater than that allowed by federal law, or any Cannabis sativa product that the processor produces.

H. Notwithstanding the provisions of subsection G, if the provisions of subdivisions 1 and 2 are included in a plan that (i) is submitted by the Department pursuant to § 10113 of the federal Agriculture Improvement Act of 2018, P.L. 115-334, (ii) requires the Department to monitor and regulate the production of industrial hemp in the Commonwealth, and (iii) is approved by the U.S. Secretary of Agriculture:

1. The Commissioner may require a grower, dealer, or processor to destroy, at the cost of the grower, dealer, or processor and in a manner approved of and verified by the Commissioner, any Cannabis sativa that the grower grows, in which the dealer deals, or that the processor processes that has been tested and is found to have a concentration of tetrahydrocannabinol that is greater than 0.6 percent.

2. If such a test of Cannabis sativa indicates a concentration of tetrahydrocannabinol that is greater than 0.6 percent but less than one percent, the Commissioner shall allow the grower, dealer, or processor to request that the Cannabis sativa be sampled and tested again before he requires its destruction.

I. The Commissioner shall advise the Superintendent of State Police or the chief law-enforcement officer of the appropriate county or city when, with a culpable mental state greater than negligence, a grower grows, a dealer deals in, or a processor processes any Cannabis sativa with a concentration of tetrahydrocannabinol that is greater than that allowed by federal law or a processor produces a Cannabis sativa product.

J. The Commissioner may pursue any permits or waivers from the U.S. Drug Enforcement Administration or appropriate federal agency that he determines to be necessary for the advancement of the industrial hemp industry.

K. The Commissioner may establish a corrective action plan to address a negligent violation of any provision of this chapter.

2018, cc. 689, 690; 2019, cc. 653, 654; 2021, Sp. Sess. I, c. 110.

§ 3.2-4115. Issuance of registrations; exemption.

A. The Commissioner shall establish a registration program to allow a person to grow, deal in, or process industrial hemp in the Commonwealth.

B. Any person seeking to grow, deal in, or process industrial hemp in the Commonwealth shall apply to the Commissioner for a registration on a form provided by the Commissioner. At a minimum, the application shall include:

1. The name and mailing address of the applicant;

2. The legal description and geographic data sufficient for locating (i) the land on which the applicant intends to grow industrial hemp, (ii) the site at which the applicant intends to deal in industrial hemp, or (iii) the site at which the applicant intends to process industrial hemp. A registration shall authorize industrial hemp growth, dealing in, or processing only at the location specified in the registration;

3. A signed statement indicating whether the applicant has ever been convicted of a felony. A person with a prior felony drug conviction within 10 years of applying for a registration under this section shall not be eligible to be registered;

4. Written consent allowing the sheriff's office, police department, or Department of State Police, if a registration is ultimately issued to the applicant, to enter the premises on which the industrial hemp is grown, dealt in, or processed to conduct physical inspections of the industrial hemp and to ensure compliance with the requirements of this chapter. No more than two physical inspections shall be conducted under this subdivision per year, unless a valid search warrant for an inspection has been issued by a court of competent jurisdiction;

5. Written consent allowing the Commissioner or his designee to enter the premises on which the industrial hemp is grown, dealt in, or processed to conduct inspections and sampling of the industrial hemp to ensure compliance with the requirements of this chapter;

6. A statement of the approximate square footage or acreage of the location he intends to use as a production field, dealership, or process site;

7. Any other information required by the Commissioner; and

8. The payment of a nonrefundable application fee, in an amount set by the Commissioner.

C. Each registration issued pursuant to this section shall be valid for a period of one year from the date of issuance and may be renewed in successive years. Each annual renewal shall require the payment of a registration renewal fee, in an amount set by the Commissioner.

D. All records, data, and information filed in support of a registration application submitted pursuant to this section and all information on a hemp producer license issued by the U.S. Department of Agriculture submitted to the Commissioner pursuant to this section shall be considered proprietary and excluded from the provisions of the Virginia Freedom of Information Act (§ 2.2-3700 et seq.).

E. Notwithstanding the provisions of subsection B, no federally licensed hemp producer shall be required to apply to the Commissioner for a registration to grow industrial hemp in the Commonwealth. Each federally licensed hemp producer shall submit to the Commissioner a copy of his hemp producer license issued by the U.S. Department of Agriculture pursuant to 7 C.F.R. Part 990.

2015, cc. 158, 180; 2018, cc. 689, 690; 2019, cc. 653, 654; 2021, Sp. Sess. I, c. 110.

§ 3.2-4116. Registration conditions.

A. A person who is not a federally licensed hemp producer shall obtain a registration pursuant to subsection A of § 3.2-4115 prior to growing, dealing in, or processing any industrial hemp in the Commonwealth.

B. A person issued a registration pursuant to subsection A of § 3.2-4115 shall:

1. Maintain records that reflect compliance with this chapter;

2. Retain all industrial hemp growing, dealing, or processing records for at least three years;

3. Allow his production field, dealership, or process site to be inspected by and at the discretion of the Commissioner or his designee, the Department of State Police, or the chief law-enforcement officer of the locality in which the production field or dealership or process site exists;

4. Allow the Commissioner or his designee to monitor and test the grower's, dealer's, or processor's industrial hemp for compliance with tetrahydrocannabinol levels and for other appropriate purposes established pursuant to § 3.2-4114, at the cost of the grower, dealer, or processor; and

5. If required by the Commissioner, destroy, at the cost of the grower, dealer, or processor and in a manner approved of and verified by the Commissioner, any Cannabis sativa that the grower grows, the dealer deals in, or the processor processes that has been tested and, following any re-sampling and retesting as authorized pursuant to the provisions of § 3.2-4114.2, is found to have a concentration of tetrahydrocannabinol that is greater than that allowed by federal law, or any Cannabis sativa product that the processor produces.

2015, cc. 158, 180; 2018, cc. 689, 690; 2019, cc. 653, 654; 2021, Sp. Sess. I, c. 110.

§ 3.2-4117. Repealed.

Repealed by Acts 2019, cc. 653 and 654, cl. 2, effective March 21, 2019.

§ 3.2-4118. Forfeiture of industrial hemp grower, dealer, or processor registration; violations.

A. The Commissioner shall deny the application, or suspend or revoke the registration, of any person who, with a culpable mental state greater than negligence, violates any provision of this chapter. The Commissioner shall provide reasonable notice of an informal fact-finding conference pursuant to § 2.2-4019 to any person in connection with the denial, suspension, or revocation of a registration.

B. If a registration is revoked as the result of an informal hearing, the decision may be appealed, and upon appeal an administrative hearing shall be conducted in accordance with the Administrative Process Act (§ 2.2-4000 et seq.). The grower, dealer, or processor may appeal a final order to the circuit court in accordance with the Administrative Process Act.

C. A person issued a registration pursuant to subsection A of § 3.2-4115 who negligently (i) fails to provide a description and geographic data sufficient for locating his production field, dealership, or process site; (ii) grows, deals in, or processes Cannabis sativa with a tetrahydrocannabinol concentration greater than that allowed by federal law; or (iii) produces a Cannabis sativa product shall comply with any corrective action plan established by the Commissioner in accordance with the provisions of subsection E. The Commissioner shall not deem a grower negligent if such grower makes reasonable efforts to grow industrial hemp and grows Cannabis sativa with a tetrahydrocannabinol concentration that does not exceed the total delta-9 tetrahydrocannabinol concentration percentage established in federal regulations applicable to negligent violations located at 7 C.F.R. 990.6(b)(3).

D. A person who grows, deals in, or processes industrial hemp and who negligently fails to register pursuant to subsection A of § 3.2-4115 shall comply with any corrective action plan established by the Commissioner in accordance with the provisions of subsection E.

E. A corrective action plan established by the Commissioner in response to a negligent violation of a provision of this chapter shall identify a reasonable date by which the person who is the subject of the plan shall correct the negligent violation and shall require such person to report periodically for not less than two calendar years to the Commissioner on the person's compliance with the provisions of this chapter.

F. No person who negligently violates the provisions of this chapter three times in a five-year period shall be eligible to grow, deal in, or process industrial hemp for a period of five years beginning on the date of the third violation.

2015, cc. 158, 180; 2018, cc. 689, 690; 2019, cc. 653, 654; 2021, Sp. Sess. I, c. 110.

§ 3.2-4119. Eligibility to receive tobacco settlement funds.

Industrial hemp growers, dealers, or processors registered under this chapter or federally licensed hemp producers may be eligible to receive funds from the Tobacco Indemnification and Community Revitalization Fund established pursuant to § 3.2-3106.

2015, cc. 158, 180; 2018, cc. 689, 690; 2019, cc. 653, 654; 2021, Sp. Sess. I, c. 110.

§ 3.2-4120. Repealed.

Repealed by Acts 2018, cc. 689 and 690, cl. 2.


§ 3.2-4121. Virginia Industrial Hemp Fund.

There is hereby created in the state treasury a special nonreverting fund to be known as the Virginia Industrial Hemp Fund, hereafter referred to as "the Fund." The Fund shall be established on the books of the Comptroller. All moneys levied and collected under the provisions of this chapter shall be paid into the state treasury and credited to the Fund. Interest earned on moneys in the Fund shall remain in the Fund and be credited to it. Any moneys remaining in the Fund, including interest thereon, at the end of each fiscal year shall not revert to the general fund but shall remain in the Fund. Moneys in the Fund shall be used by the Department solely for carrying out the purposes of this chapter. Expenditures and disbursements from the Fund shall be made by the State Treasurer on warrants issued by the Comptroller upon written request signed by the Commissioner.

2020, cc. 659, 660.