Virginia is creating strict new CBD oil regulations. Why are health food stores and gas stations already selling it?

This week state regulators named five businesses that will be allowed to sell medical marijuana oils, including cannabidiol (CBD) products, a non-intoxicating compound that a growing number of people are taking for ailments like anxiety, sleep problems, epilepsy and general inflammation, among others.

The oils will be strictly regulated: Patients must register with the state and get approval from a doctor, who also must register with the state. Only then will they be allowed to pop in to one of the five approved retailers to buy it once they’re up and running sometime next year.

There’s just one bizarre hiccup: CBD products are already widely marketed and available for sale in Virginia. Anyone could walk into a health food store in Richmond today, order a CBD lemonade and pick up a bottle of CBD extract to go.

Similar products are widely available in headshops and more adventurous gas stations and convenience stores.

So what’s going on?

Lots of stores are selling CBD, but it isn’t exactly legal.

The industry took off after Congress passed the 2014 Farm Bill, which allowed states to regulate hemp production for research and industrial purposes.

Hemp is the same basic plant as marijuana, but through years of intentional cultivation, marijuana plants have much higher concentrations of THC, or tetrahydrocannabinol, the compound in marijuana that produces a high, in their buds than hemp plants.

But, hemp can have enough CBD in it to produce an extract, and businesses promoting hemp-derived CBD products have exploded nationwide.

The Drug Enforcement Administration has since clarified that, no, CBD derived from hemp is not legal and remains a Schedule 1 drug.

That has not stopped businesses from selling CBD products, which were even briefly available from major national retailers like Target. Plenty of other reputable retailers still carry them. They’ve also started appearing in gas stations along with other weird drugs and supplements.

“You might see it at the gas station, but is it legal? No,” said Jenn Michelle Pedini, the executive director of Virginia NORML, a pro-marijuana group.

She said that hasn’t been a barrier to business, though. “No one cares to enforce it.”

But because it’s an unregulated market, Pedini says quality can vary widely. She said cheaper products in particular either have a very low quantity of CBD in it, if any, or are produced from a concentrated import that’s added to hemp oil.

“Currently you have no way of knowing what you’re getting unless you’re buying from a reputable company in a well-regulated market,” she said.

If there’s uncertainty, it isn’t scaring away customers.

In the span of about 10 minutes, at least three people walked up to the nutrition counter at Ellwood Thompson’s, an organic grocery in Richmond, to inquire about their vast selection of CBD products.

One woman said she uses it to sleep and was picking up a cream for her boyfriend, who she explained does manual labor. She added that she has a friend who buys it for her dog, which is apparently not uncommon.

Jutta Bracy, the nourish department manager, said the store has been stocking it for about a year.

“Our customers were asking for it,” she said. “Our interest had been piqued for some time and when companies began making it available in the marketplace, we were very interested in carrying it.”

She said she’s confident in the quality of the products her store carries, but understands online retailers and some gas station might sell inferior products. As far as the legality goes, she said the store isn’t worried.

“It’s basically something that we feel we could legally challenge,” she said. “I don’t want to have to go that way and I don’t think it will come to that because it’s everywhere. The dam is broken and they can’t put the water back in.”

Of course, Virginia’s baby steps toward medical marijuana go beyond CBD.

The regulated medical marijuana market lawmakers opened the door to with new legislation earlier this year isn’t all about CBD.

The five licensed producers are also allowed to sell oil products that contain THC.

It’s complicated, but as written, the law allows for two basic products that can be produced in various mixes: one with CBD, one with THC-A, the nonintoxicating precursor to THC. Any oil can have a maximum of five percent THC, which, again, is the stuff that gets people high.

That five percent cap severely limits therapeutic potential and recreational potential, Pedini says. Products produced in states where recreational marijuana is legal generally have 30 percent or more THC.

That said, Virginia producers are allowed to create products with an unlimited amount of THC-A, which is easily converted to THC with the application of heat, so if the patient consumed the product using a vaporizer, for example, it would be considerably stronger. (Although consuming the product in that manner isn’t permitted under the law.)

Which products patients seek out – CBD, THC-A or mixes — and how they use them, remains to be seen.