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Update on the status of marijuana legalization

Legislation in 2021 legalized simple possession of marijuana for adults and growing and harvesting of up to four plants in a household, but many provisions of the 2021 bill, including provisions establishing a retail market for marijuana, required reenactment by the 2022 General Assembly in order to take effect.  Omnibus legislation that would have established a regulatory framework for retail sales of marijuana failed to pass in the 2022 session.  As a result, portions of the 2021 legislation remain in effect, while others were not re-enacted as stipulated in the 2021 legislation and thus did not become law.

Below is an overview of key provisions of the 2021 legislation that remain in effect, as well as provisions that are not law.  The full text of the 2021 legislation may be found at this link.  An issue brief prepared by the Division of Legislative Services may be found at this link.  VACo will provide updates should any further action on this issue be taken during the special session that convened on April 4, or during the reconvened session on April 27.

Key provisions of the 2021 legislation that remain in effect:

  • Establishment of the Cannabis Control Authority, which is charged with control of the possession, sale, transportation, distribution, and delivery of retail marijuana and retail marijuana products in the Commonwealth.
  • Legalization of possession of not more than one ounce of marijuana by adults. Possession in excess of an ounce of marijuana (but less than a pound) is subject to a civil penalty of not more than $25; similar provisions apply to consumption of marijuana in public.  Possession of more than one pound is a felony.  Possession by a person younger than 21 is unlawful; a person 18 or older who violates this provision is subject to a civil penalty and must be ordered by the court to enter a substance abuse treatment or education program, if available.  Similar provisions apply to violations by persons younger than 18.  Sharing of less than one ounce of marijuana between adults is also legal, but these provisions do not include “gift with purchase” transactions.
  • Provisions barring use of marijuana while driving or being a passenger in a vehicle being driven on a public highway (a violation is a Class 4 misdemeanor); barring consumption or possession on the grounds of a public elementary or secondary school (a violation is a Class 2 misdemeanor); barring possession or consumption while operating a school bus and transporting children (a violation is a Class 1 misdemeanor); and barring transportation of marijuana in a vehicle used to transport passengers for hire.
  • Legalization of home cultivation of up to four plants for personal use, subject to certain requirements for screening plants from public view, labeling the plants, and taking precautions to prevent unauthorized access by persons younger than 21. Possession of more than four plants but not more than 10 plants triggers a civil penalty of $250 for a first offense; possession of more than 10 but not more than 49 plants is a Class 1 misdemeanor; possession of more than 49 but not more than 100 plants is a Class 6 felony; and possession of more than 100 plants is a felony punishable by a term of imprisonment of not less than one year nor more than 10 years and a fine of not more than $250,000, or both.
  • Provisions limiting the dissemination of criminal history records related to possession of marijuana and provisions establishing a process for automatic expungement of records relating to possession of marijuana, as well as provisions establishing a process for persons convicted of certain felony marijuana offenses to petition for expungement of records. These provisions will take effect four months after notification that certain automated systems are in place to exchange information among the Supreme Court, the State Police, and circuit court clerks, or on July 1, 2025, whichever is earlier.
  • Provisions revising the statute barring an employer or educational institution from requiring an applicant for employment or admission to disclose information concerning any arrest or criminal charge that has been expunged; the 2021 legislation added convictions or civil offenses to this statute, effective four months after notification that certain automated systems are in place or on July 1, 2025, whichever is earlier.
  • Removal of language allowing a court to remove elected or appointed officers from office for certain marijuana-related convictions.

Key provisions of the 2021 legislation that were not re-enacted and thus are not in effect:

  • Provisions allowing a local referendum on whether retail sales within the locality would be prohibited, as well as provisions allowing localities to regulate the hours of operation for retail sales. Similarly, provisions barring localities from regulating or prohibiting cultivation, manufacture, possession, sale, or other aspects of retail marijuana (but retaining local zoning, land use, and business license requirements and allowing localities to adopt ordinances banning use of marijuana in public or on school property and regulating or prohibiting possession of open containers in public areas).
  • Establishment of licenses for marijuana cultivation facilities, marijuana manufacturing facilities, marijuana testing facilities, marijuana wholesalers, and marijuana retailers, including conditions under which the Board of Directors of the Cannabis Control Authority may or must refuse to grant licenses, as well as grounds for which licenses may or must be suspended or revoked.
  • Penalties for engaging in certain marijuana commerce without the appropriate license.
  • Restrictions on advertising, including limitations on outdoor advertising.
  • Requirements for sampling and testing of retail marijuana; packaging and labeling requirements; and other health and safety requirements for edible marijuana products.
  • Imposition of a state tax on marijuana, marijuana products, and marijuana paraphernalia, and authorization for an optional local marijuana tax.
  • Repeal of 18.2-248.1, which establishes penalties for the sale, gift, distribution, or possession with intent to sell, give, or distribute marijuana.

Separate legislation (SB 591 (Hanger)) passed during the 2022 General Assembly session and awaits action by the Governor.  The bill is narrower in scope than the failed omnibus legislation and is intended to bar sales of certain synthetic products by modifying the definition of “marijuana” to include any substance containing (a) a total tetrahydrocannabinol (THC) concentration that exceeds 0.3 percent or (b) more than 0.25 milligram of THC per serving or more than one milligram per package.  Marijuana would be defined to exclude industrial hemp possessed by a person who holds a hemp producer license issued by the U.S. Department of Agriculture, or certain industrial hemp extracts that contain less than the stipulated concentration of THC.

VACo Contacts:  Katie Boyle; Phyllis A. Errico, Esq., CAE; Joe Lerch, AICP

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