Fact Checked

West Virginia Senate Votes to Ban Delta 8 THC

West Virginia — home to one of the strictest medical marijuana programs in the country — is looking to strengthen its stronghold on cannabis 🚫.

By J Gordon Curtis Verified by: Tripsitter Legal Team · Last Updated: March 20, 2023
Last Updated: March 20, 2023

West Virginia state senators have brought two bills to the legislature that have already passed through the Senate and are likely to pass the House as well. State Bill 220 and State Bill 546 (SB 220/SB 546) both seek to impose restrictions on cannabis businesses and remove the only widely available form of tetrahydrocannabinol (THC.)

Delta 8 THC is far from perfect, and there are real concerns surrounding contamination, underage sales, and truthful package labeling. These are largely overblown by lawmakers, and their solution in almost every instance — this one included — is to strengthen their grip on prohibition.

To wit: SB 220 seeks to criminalize delta 8 by removing producers’ ability to create their products synthetically. Delta 8 is a naturally occurring cannabinoid but only in trace amounts which makes pulling them from the plant this way impossible. Instead, manufacturers use synthetic processes to convert the non-intoxicating cannabidiol (CBD) isolate into delta 8 THC.

Cannabis sativa

SB 546 uses a more straightforward method of prohibition by placing delta 8 and any other form of THC on their list of Schedule I substances. In both instances, delta 8 — a cannabinoid less potent than the weed itself — would join heroin and other “dangerous” drugs like marijuana and lysergic acid diethylamide (LSD).

Let’s break down these efforts and what they mean for people in the state with a seal proudly proclaiming, “Mountaineers are Free.”

Related: Current Legalization & Decriminalization Efforts in West Virginia

Legislative Efforts to Ban Delta 8 in West Virginia

SB 220 and 546 are working together to heavily restrict the hemp and kratom market and increase the punishment for violating the new restrictions.

Here’s a quick breakdown of the key points of the proposed legislation:

Key Changes for Cannabis from SB 220

1. It criminalizes synthetically created cannabinoids like delta 8 outside of their natural trace amounts, placing synthetic forms of delta 8 in Schedule I.

2. It requires anyone selling hemp products to obtain a license from the Commissioner of Agriculture, who will also:

  • Sample and approve products
  • Supervise and approve the “manufacture, processing, and sale” of hemp products
  • Assess the fees they should charge cannabis companies for these services
  • Develop standards for labels and warnings
  • Decide which types of businesses can sell hemp
  • Determine what (if any) advertising they will allow
  • Decide which shapes/forms/images on or of products constitute targeting minors
  • Consider if there are “any other rules and procedures necessary to carry out the purpose of this article.”

3. It adds a 15% tax “for the privilege of engaging in the business of selling hemp-derived cannabinoid products,” which businesses cannot pass on to the customer.

Punishments for violating these new restrictions include:

  • First Violation — A fine of up to $1,000 and/or one year in jail.
  • Second/Subsequent Violations (Each Package and Product is Separate) — Fine of up to $5000 and/or up to 5 years in jail.
  • Producers, manufacturers, distributors, and businesses who knowingly create these products with prohibited additions like delta 8 can face up to $10,00 in fines and 2–10 years in prison.
  • Businesses selling products that are still legal without a license can face up to $1,000–5,000 in fines and/or up to 1 year in jail.
  • Businesses and distributors knowingly distributing these substances can face $10,000–25,000 and/or 1–5 years imprisonment.
  • Sales to anyone under 21 can result in up to $5,000 in fines and/or 1–5 years in jail.

Key Changes for Cannabis from SB 546

This bill is less robust but slightly more restrictive. It would place delta 8 and “all delta tetrahydrocannabinol” outside of medical marijuana Schedule I. Currently, §60A-4-401 subsection (c) states the first offense for possession of synthetic cannabinoids is “not less than ninety days nor more than six months [in jail]” or a fine of “not more than one thousand dollars, or both.”

It is currently not known if there is an exception for delta 8 or the rest of the alternative forms of THC, but it’s likely to remain the same. Otherwise, possessing a Schedule I or II substance could lead to imprisonment for 1–10 years and/or a $2,500 fine. Distribution or “intent to distribute” bumps the charge up to 5–40 years and up to $500,000 in fines for a first conviction.

The reasoning behind these excessive punishments is that the criteria for a Schedule I drug are a high potential for abuse and no medical potential. That said, marijuana is both medically legal in West Virginia and a Schedule I narcotic, so the political reasoning is apparent.

The Political Landscape of West Virginia

As one of the most conservative states in the union, the conservative party has a stronghold in West Virginia. Currently, marijuana is legal for medical use with some severe restrictions.

Only patients with the following conditions have the opportunity to buy medical marijuana:

  • Amyotrophic Lateral Sclerosis
  • Cancer
  • Crohn’s Disease
  • Epilepsy
  • Huntington’s Disease
  • Intractable Seizures
  • Multiple Sclerosis
  • Chronic Nerve Pain
  • Parkinson’s Disease
  • Post-Traumatic Stress Disorder
  • Severe, Chronic, or Intractable Pain
  • Spinal Cord Damage
  • Sickle Cell Anemia
  • Terminal Illness

Delegate Danielle Walker is swimming upstream in the fight and recently introduced legislation to back up the “mountaineers are always free” motto of the state. Del. Walker wants to change the law with House Bill (HB) 2091, legalizing adult-use marijuana in the state and legalizing possession of up to an ounce of marijuana.

Unfortunately, the House contains an 88% Republican majority, and the Senate is closer to 93%, so it’s unlikely this will make much progress. Still, it’s encouraging to see somebody willing to fight, even if the war doesn’t seem winnable.

Reasoning Behind Banning Delta-8 in West Virginia

Senator Stuart said of his bill, SB 546, “I am proud of the overwhelming and bipartisan support by the State Senate for passage of laws that will immediately protect our children and deal with what many call ‘the next opiate crisis.’” It’s worth noting the Senate consists of three (out of 30) Democrats, but they all voted “yea.”

He went on a series of media appearances, showcasing products with familiar snack labels without warning of their THC content. The West Virginia Oil Marketers & Growers Association (OMEGA) pushed back against this claim shortly thereafter with a statement claiming:

Unfortunately, the products that Senator Stuart has displayed in media interviews have inaccurately depicted the legal CBD Delta 8 & 10 products that our members sell in their stores. The products being shown in the media from Senator Stuart contain a synthetic form of Delta 8, which is not included in the legal products that are regulated by the West Virginia Department of Agriculture.

OMEGA may look like they are clutching pearls, but they supported SB 220, which would ban delta 8 and impose severe restrictions on hemp bills. In reality, both efforts seek to show force and maintain stigmatization.

If it had anything to do with constituents’ safety, the focus would be on safe production and retail standards.

Instead, prohibition forces people who were using delta 8 THC to seek out marijuana while simultaneously preventing quality control thereof. For residents of West Virginia, they will have to do this in the very market their lawmakers fight hard to keep less reliable and safe.

Responding to criticism of the bill in a tweet, Stuart said it’s  “interesting that the ‘get high warriors’ are ‘driven’ by ‘getting high…Ever notice how their comments to my posts rarely happen before noon? [sic, random quotations].”

Stuart recently succeeded in signing a law to enable the concealed carry of firearms on university campuses. Additionally, he has bills in the works to give cops the right to obtain a DNA sample from some offenders upon arrest (before due justice) and extend some of the authority of the police to firefighters.

Related: The War on Drugs — Why It Failed & Where to Go From Here

Conclusion: Is There a Path Forward in West Virginia?

With the overwhelming leverage of conservative ideals in West Virginia, we’ll unlikely see movement towards decriminalization or legalization anytime soon. SB 220 and 546 have already passed through the Senate unanimously.

From here, they’ll go through various committees in the House of Delegates and face a vote in the chamber. If the bill doesn’t have significant changes from the Senate version, it’s off to the governor for signature.

Given how few people sit in either chamber with a desire to move in a different direction, it’s unlikely real change will come any time soon. Hopefully, in time, the “get high” warriors of The Mountain State can get enough “traction” to “drive” these policies out of office.