West Virginia Bill Summary- The Mountain State Considers Mountain-Sized Changes to Its Controlled Substances Act

Like its neighbor to the east, West Virginia is attempting to stifle the proliferation of mood-altering hemp-derived products within its borders. Introduced on February 2nd, and recently passed through the Senate, West Virginia Senate Bill 546 (SB 546) is summarized as: “Adding and removing certain compounds from the controlled substance list.” Specifically, SB 546, in its most recent form, adds the following to its list of Schedule I controlled substances:

“delta-8 Cis or trans tetrahydrocannabinol and its optical isomers; and

delta-10 Cis or trans tetrahydrocannabinol and its optical isomers;”

and

“Delta-8-tetrahydrocannabinol-O (delta-8-THC-0), Delta-9

tetrahydrocannabinol (delta-9-THC-0) and Synthetic and non-naturally occurring cannabinoids.

The provisions of this section related to tetrahydrocannabinols are inapplicable to products or substances lawfully manufactured, distributed, or possessed under the provisions of §19-12E-1 et seq.  and Chapter 16H of this code.”

As evidenced by the text of the amendments, the West Virginia legislature is clearly targeting specific (and newly popular) forms of tetrahydrocannabinol (THC) as well as “synthetic and non-naturally” occurring cannabinoids, seeking to make them Schedule I controlled substances under state law.

Critical to note, however, is the language which specifically states:

“the provisions of this section related to tetrahydrocannabinols are inapplicable to products or substances lawfully manufactured, distributed, or possessed under the provisions of §19-12E-1 et seq. and Chapter 16H of this Code.”

For reference, §19-12E-1 of the West Virginia Code describes the state’s “Industrial Hemp Development Act” (Act). Specifically, the Act defines “hemp” or “industrial hemp” as:

“all parts and varieties of the plant Cannabis sativa L. and any part of the plant, including the seeds of the plant and all derivatives, extracts, cannabinoids, isomers, acids, salts, and salts of isomers, whether growing or not with no greater than 0.3% tetrahydrocannabinol, or the THC concentration for hemp defined in 7 U.S.C. § 5940, whichever is greater.”

Additionally, the Act defines “hemp products” as: “all products derived from, or made by, processing hemp plants or plant parts, that are prepared in a form available for commercial sale.”

7 U.S.C. §5940 defined “industrial hemp” as: “the plant Cannabis sativa L. and any part of such plant, whether growing or not, with a delta-9 tetrahydrocannabinol concentration of not more than 0.3 percent on a dry weight basis.”

The language of SB 546 clearly indicates its prohibitions against certain types of THC are inapplicable “to products or substances lawfully manufactured, distributed, or possessed” under the Act. Moreover, the Act states that “Notwithstanding any other provision of this Code to the contrary, the THC found in industrial hemp shall not be considered to be THC for the purpose of qualifying as a controlled substance.”

So, while it appears as if West Virginia is adding additional types of THC to its list of controlled substances, at this point in time it is clear that these new prohibitions do not affect hemp-derived products provided they do not exceed 0.3% Delta-9 THC on a dry weight basis.

Keep in mind SB 546 has already been through numerous revisions and is subject to change until it either dies in the legislature or is signed by the governor. Because of this, stay tuned to this blog for updates on the status of mood-altering hemp-derived cannabinoids in West Virginia.

For more information on West Virginia’s hemp bill, or for questions regarding cannabis laws across the country, please contact Kight Law today.

March 14, 2023

This article was written by attorney Philip Snow. Kight Law represents hemp businesses in the US and throughout the world. To schedule a consultation please click here and mention this article.