“It’s Déjà Vu All Over Again”
By: M. Jarrad Wright
After the most recent special General Assembly session. Virginia employers, employees and citizens understanding of what will happen with Virginia’s marijuana and cannabis rules have no new clarity. As Yankees Hall of Famer Yogi Berra once said, “it’s déjà vu all over again.”
Weren’t We Supposed to Learn More About How Selling Pot Will Work?
On July 1, 2021 Virginia became the first state in the southern United States to permit recreational marijuana. While the legalization was permanent, the mechanisms setup by the General Assembly to regulate sales, to regulate licenses, and the taxing scheme is not permanent. Those provisions required reenactment from the legislature, but since that time the Commonwealth of Virginia has elected a new Republican Governor and a Republican House of Delegates. Going into the General Assembly session, there was a lot of discussion as to how a new marijuana market would be established including who would get licenses to manufacture, how the taxes would be allocated, and who would be prioritized to get dispensary licenses. At the end of the regular session, the Democrat controlled Senate had passed a bill but the Republican controlled House took no action. In effect, all of the negotiation and speculation was for naught, and Virginia companies and citizens were left where they started – guessing what the ultimate regulatory scheme would be.
What About the Changes To Cannabis Products?
Although procedurally different, a similar result has occurred with respect to cannabis products sold throughout Virginia that contain the chemical Delta-8. During the general session, the Republican House and the Democrat Senate actually came together and overwhelmingly passed a bill that redefined Delta-8 as marijuana, which would have made it illegal for non-licensed stores to sell Delta-8 products. The bill was the result of lawmakers’ concerns that children were being specifically targeted and marketed cannabis products. As such the bill began by banning the retail sale of products that depict or are in the shape of a human, animal or vehicle, as they may be appealing to children. After receiving the bill, Republican Governor Youngkin, proposed amendments to create two new intermediate misdemeanors for possession over the legal limit of one ounce. Initially, the Democrat Senate voted to reject the Governor’s proposed amendments with the new Republican Lieutenant Governor casting the tie breaking vote. However, later Senate re-voted and decided to send the bill back to committee. Therefore, despite originally being passed with overwhelming support, the cannabis bill is no longer moving forward at this time and the Virginians are back where they started the year.
Ok, So What Now?
For cannabis, it means that for the time being the Delta-8 products that are sold throughout the nation can still be sold in Virginia. That said, the legislature did originally pass the measure with overwhelming support, so some regulation next year should be expected even if it is just the shapes measure.
For marijuana, the current legalization of possession under one ounce remains but important regulatory and employment issues remain undecided. Basic questions about the ultimate legal resell market such as what taxes apply, who can grow and who can sell are unknown. The original marijuana legislation included a reenactment clause requiring the General Assembly to affirmative revote in favor of the regulatory and taxing rules. Legal marijuana sales are not scheduled to being until January 2024. Both sides have nominally said that they agree with such sales, but the divide on the way to do it is large. New General Assembly election will not occur until November 2023. So, it is possible that the General Assembly will wait to act until a new chamber is formed, but such a delay would not give the regulators and government officials on the ground enough time to meet the January 2024 deadline for retail sales.
Finally, there are a lot of important questions for Virginia employers that have not been answered. For example, the marijuana law as currently enacted does not address legal issues such as whether or not a work place in Virginia can be required to be drug-free or whether an employer can mandate drug testing. Under current law employers can maintain drug testing policies for marijuana, and current Virginia law generally allows employers latitude in setting policies that allow them to test and to fire employees for legal drug use outside of working hours. On a practical level, this can be difficult in a state where marijuana use is legal and since marijuana can be detected in the body for a long time after use. Virginia has a medical cannabis oil law that prohibits Virginia employers from discharging or disciplining employees for the lawful use outside of the workplace of medical cannabis oil “pursuant to a valid written certification issued by a practitioner for the treatment or to eliminate the symptoms of the employee’s diagnosed condition or disease.” But for marijuana there is not similar clear statement of law to guide employers.
