When it comes to adult use cannabis in Virginia, the landscape has become muddy.
On the first day of September, Virginia’s Cannabis Oversight Commission held its first meeting since January. At the start of the meeting, David May, an attorney with the General Assembly’s Legislative Services Division, provided an overview of “legislative action” related to cannabis in 2022, a year during which the state was set to adopt a regulatory framework for adult use sales.
The “situation now,” May said, is that “while we have legalized possession of marijuana, you just can’t lawfully purchase it in the Commonwealth.”
Few states had a clearer or steadier path toward legalization than Virginia. So, what went wrong?
At first, progress was swift. In late 2019, then state Attorney General Mark Herring hosted a cannabis summit during which he committed to reform, starting with decriminalization. By April 2020, then Gov. Ralph Northam signed decriminalization into law. By August 2020, Herring announced a push toward adult use legalization, followed by a declaration of support from Northam in November. By April 2021, lawmakers passed the adult use legalization bill that Northam signed into law.
However, as written, while legal home grow of four plants and legal personal possession took effect in July 2021, sales could not start until 2024. And, parts of the legislation required “re-enactment,” meaning another vote by lawmakers sometime in 2022.
This year, though, ushered in major changes in Virginia’s political makeup. Democrat Gov. Northam’s term ended and Republican Glenn Youngkin took office in January. And, significantly, Republicans took control in the House of Delegates.
It quickly became clear that the once-smooth-ish path toward an adult use industry had been disrupted with hurdles. After months of debate over dozens of cannabis bills in the General Assembly, only two made the cut by the end of the session, and they pertained to medical cannabis.
Now what?
The bill that would’ve established the regulatory framework for adult use sales, and put into effect reform related to criminal penalties and expungement, among other provisions, was pushed to 2023. Sen. Adam Ebbin, who helped to spearhead the adult use push among lawmakers under Northam, introduced the bill, SB 391. While it passed out of the Senate, the bill then got a 12-10 vote in the House General Laws committee to be “continued” to the next session. In other words, lawmakers kicked the can.
It remains to be seen whether this bill, hundreds of pages long, will be taken up in the next session or replaced with several smaller bills in an effort to increase its chances of passage in the House.
Even among proponents of quickly launching adult use sales, one question could prove contentious: who will be able to sell first? Ebbin’s bill aimed to allow the state’s four existing vertically-integrated medical cannabis operators (known as “pharmaceutical processors”) and industrial hemp processor licensees to begin adult use sales as early as this September.
As Cannabis Wire previously reported, the proposal to prioritize existing medical cannabis operators is not unanimous. Lawmakers opposed to this move have raised concerns that it would undermine social equity. Conversely, those in favor said that the illegal market would flourish in the gap of time it took to set up a legal framework for sales.
It has.
Another bill that would have reined in the proliferation of unregulated THC products was ultimately killed because Youngkin added new cannabis penalties at the last minute. Even though lawmakers originally passed the bill, SB 591, they chose not to do so with his amendments.
Then, in June came Youngkin’s budget, which resurrected some of the aims of SB 591.
The budget made the possession of more than four ounces of cannabis in public a misdemeanor. More than a pound could result in a felony charge. Otherwise, those possessing more than the legal limit of one ounce but less than four ounces will only pay a $25 fine. (Youngkin’s amendment to SB 591 would’ve made the possession of more than two ounces a misdemeanor, with steeper penalties for the possession of more than six ounces.)
The budget also addressed unregulated THC products, such as those containing delta-8 THC, which can be produced from hemp extracts but have intoxicating effects. As Cannabis Wire has reported, these products exist in a legal gray area and have become widely available across the country as regulators grapple with them.
The budget called for the creation of a “task force” that would “analyze and make recommendations regarding whether any statutory or regulatory modifications are necessary to ensure the safe and responsible manufacture and sale of industrial hemp extracts and other substances containing tetrahydrocannabinol that are intended for human consumption, orally or by inhalation, in the Commonwealth,” with a “focus” on THC isomers, which would include delta-8. The tax force’s report would be due to the governor by November 15, 2022.
Also, regulations must be adopted, the budget read, to “require that any industrial hemp extract or food containing an industrial hemp extract that contains tetrahydrocannabinol be equipped with a label” that lists ingredients, serving size, amount of THC in each serving, and language making it clear the product is not for those under the age of 21. These products also cannot depict or be “in the shape of a human, animal, vehicle, or fruit.”
Youngkin signed the budget on June 21.
On June 30, the Virginia Department of Agriculture and Consumer Services and the Office of the Attorney General of Virginia announced that they “are initiating efforts to address the retail sale of certain products that contain tetrahydrocannabinol (THC) in response to provisions included in the budget.”
Among those efforts is a “communication” that “will advise that any chemically-synthesized cannabinoid is a food adulterant and any person who manufactures, sells, or offers for sale a chemically-synthesized cannabinoid, including delta-8 THC, as a food or beverage is in violation of the Virginia Food and Drink Law.”
At the Cannabis Oversight Commission meeting at the start of September, Chief Deputy Secretary of Agriculture and Forestry Parker Slaybaugh gave an update on the task force’s work to-date, ahead of its report due in November. So far, two meetings have been held, in July and August, with one more on the horizon.
In addition to all of the legislative work yet to be done around cannabis, they, too, will have some proposals for the legislature to consider when it comes to products for human consumption that contain THC.
And then there’s medical cannabis. The bill Northam signed into law created a Cannabis Control Authority (CCA) to oversee both the new adult use market and absorb from the Board of Pharmacy the existing medical use market. While the CCA is busy at work toward this, May flagged that this, too, is an area where the legislature must act.
“The General Assembly ultimately needs to make a decision on whether we want to continue with that transfer of medical marijuana to the CCA or if we want to keep it with the Board of Pharmacy. But either way, there’s something that we need to do legislatively,” May said.
