VIRGINIA VAPE SHOPS: The Changing Landscape for the Sale of THC Products in Virginia

What’s the big deal? Marijuana and THC products are now legal in Virginia, right? The legal answer to that is—”well, sort of.” Whether you are a Vape shop owner, vape shop employee, vape shop customer, THC consumer, or just THC curious, this article will interest you.

 

The genesis for this Article is that our firm McCormack and McCormack has seen about a 500% increase in criminal cases stemming from or connected to local Vape Shops over the last 24 months or so. Most, if not all of them, contained some element of confusion regarding what was legal and what was not.

So, let’s walk through things from the beginning.

Marijuana Decriminalization in Virginia

Beginning in the Summer of 2020, Marijuana possession in Virginia began shifting away from its original status as a misdemeanor criminal offense. At first, it changed into an unclassified misdemeanor with a maximum jail sentence of 30 days, then it took a brief stop as a decriminalized “civil offense” punishable only by a fine, and then finally it has arrived at its current legal status which is possession of limited quantities for personal use is legal.

The double emphasis on possession is intentional. The key here, and the terms you see used over and over, are possession and personal use quantities. One can quickly see the problem that this created. The sale and distribution of traditional Marijuana remains illegal, as does possession of more than one ounce. This is also a distinct legal status pertaining to traditional marijuana because THC-variant products like Delta 8 can have an entirely different legal status, as discussed below.

Not all Marijuana Related Activities have been legalized

The possession of traditional marijuana, up to one ounce, is permitted in Virginia, but public smoking remains prohibited. If a person possesses more than one ounce, is distributing, or is in possession of quantities or packaging that suggests an intent to distribute, the person can be charged with misdemeanor or felony offenses for possession with intent to distribute, or distribution or marijuana. Virginia Code section 18.2 -248.1 makes the sale, distribution, or possession with intent to sell or distribute a class 1 misdemeanor if less than one ounce of marijuana is involved, a class 5 felony if between one ounce and five pounds is involved, or much more serious felony if more than five pounds is involved.

Limitations also exist if a person chooses to grow personal-use marijuana plants. If the person exceeds the legal maximums they can be criminally charged. Specifically, in one’s residence, up to four marijuana plants are permitted, but must be tagged with the owner’s identification and shall not be manufactured for sale (Virginia Code § 4.1-1101). Violation of this code may result in a felony charge depending on the quantity of marijuana plants.

To further cloud this issue, although a person is legally permitted to plant and cultivate up to four seeds/plants in Virginia, it remains illegal to purchase the seeds in Virginia.

THC Variants “Delta 8” “Delta 9”

For anyone that does not know, Delta 8, Delta 9, and synthetic cannabinoids involve commercially synthesized products derived in some form from the marijuana plant, including hemp and CBD derivatives. For purposes of this article, this category also includes synthetically created products that have been designed to mimic the effects of traditional THC but which have different chemical structures and therefore do not test at a laboratory as traditional marijuana or THC 9.

Just for awareness, many synthetic cannabinoids have been added to the federal controlled substance act. The federal status of THC itself is shifting and will be discussed below, but this Article is about Virginia law.

So what is Virginia doing with these products? Virginia tasked the Virginia Department of Agriculture and Consumer Services to create an Office of Hemp Enforcement. Formed in 2023, the Office enforces the regulatory and legal requirements for the sale of “certain hemp-derived products.”

The phrase “certain hemp-derived products” is the key.

So what can a Vape Shop legally sell and how?

Any hemp product (meaning THC derived product) may not exceed 0.3 percent THC and may not have more than two milligrams of total THC per package unless the CBD to THC ratio is as least 25 parts CBD for every one-part THC.

The measure of THC in this regulation means total THC, including Delta 8 and Delta 9 THC.

 

Even if the products a store intends to sell meets the above requirements, before any person can legally sell these products, they must submit an Edible Hemp Products Disclosure form to the Office and they may be required to receive a permit unless they can demonstrate that their retail establishment is exempt. Further, beginning in November 2024, the VDACS regulations began requiring that all entities who wish to sell hemp regulated products register with the office. It’s a $1,000 annual fee, and Virginia Code Chapter 41.1 Section 3.2- 4122 pertains.

The seller or vendor who meets all these requirements must still be sure that the products they sell are in compliance and that they do not sell to anyone under the age of 21. Various penalties pertain depending on the specific violation, ranging from civil fines and penalties to criminal charges.

 

The Federal Transition to Schedule III

In December 2025, President Trump issued an executive order to begin transitioning Marijuana from a Schedule I controlled substance to a Schedule III controlled substances under the Federal Controlled Substances Act. It is important to understand that this executive order does not confirm or establish the transition, rather it only began the process. The transition requires various administrative rulemaking processes to occur, with

both DEA and DOJ involvement. As such, Marijuana has not suddenly become “legal” on the federal side. Similarly, even if this change is successful, a federal move from Schedule I to Schedule III does not equate to legalization. Schedule III controlled substances remain federally illegal for recreational use. A move to Schedule III of the federal Controlled Substances Act would, however, enable medical providers to write prescriptions for THC as a move to Schedule III would denote the federal government’s acceptance that marijuana/THC has accepted medical uses.

 

 

Ignorance of the Law Will Not Be an Excuse

Whether you own or manage a Vape Shop, are simply an employee, or you are customer, ignorance of the law will not be an excuse if you are caught in violation. This Article has not attempted to address every legal nuance and situation that can occur, but you can be sure that a person’s excuse or explanation that they did not know about the law will not be persuasive to the police, nor will it prevent their arrest and prosecution.

It is each person’s responsibility to educate themselves on the law and regulations. This is whether you are a store owner, manager, cashier, or customer. If you find yourself involved in an investigation, execution of a search warrant, or otherwise under suspicion, you would be best served to say nothing and contact an attorney. This is regardless of whether you have been provided Miranda warnings by the police or not.

At McCormack and McCormack, we have represented numerous vape store employees, owners, and managers facing criminal charges in multiple jurisdictions across Virginia. If you or someone you know is facing these charges, or you believe your store or employer may be under suspicion or investigation for THC sales, please call McCormack and McCormack at (757)463-7224 for a free legal consultation.