On February 5, 2021, the Virginia House of Delegates and Senate approved two different approaches to legalizing cannabis for adults’ use — HB 2312 and SB 1406. The two bills will now need to be reconciled. This examines the points of departure between the two bills and discusses our preferred approach.
HB 2312
SB 1406
Our Preferred Approach
When legal possession takes effect
The existing civil penalty (§ 18.2-250.1) appears to be repealed on January 1, 2024.
Sen. Ebbin said on the Senate floor the existing civil penalty (§ 18.2-250.1) is repealed when the law takes effect.
SB 1406, but we urge clarification, including that § 4.1-1100 also becomes effective when the law takes effect to avoid ambiguity. Adults should not be penalized for cannabis.
Legal for adults to share with other adults?
Yes. § 4.1-1103 defines “adult sharing” and exempts it from penalties for illegal sales.
No, adults can go to jail for up to six months for a first offense of sharing a joint with a spouse, dinner guests, etc. A subsequent conviction is a Class A misdemeanor, carrying up to a year. (§ 4.1-1103)
HB 2312. Adults should not be criminalized for sharing cannabis.
Excessive penalty for minors possessing cannabis?
No. § 4.1-1105 imposes a civil fine of up to $25 and/or substance abuse treatment or an education program.
Yes. For a first offense, § 4.1-1105 imposes a fine of up to $250 (depending on age). For a second offense by someone 18-20, it imposes criminal charges. For a subsequent offense, it includes possible jail time.
HB 2312. SB 1406 goes backwards, re-criminalizing cannabis for minors.
Excessive penalty for consuming cannabis in a moving vehicle?
No. §4.1-1107 mirrors the penalty imposed for drivers consuming alcohol in a moving vehicle — a Class 4 (fine-only) misdemeanor.
Yes. § 4.1-1107 imposes a Class 1 misdemeanor (up to a year in jail) even if the person using cannabis is a passenger who is using a non-inhaled product.
HB 2312. SB 1406 imposes far harsher penalties on passengers using cannabis than a driver drinking alcohol while driving.
Excessive penalty for consuming cannabis in public?
Less so than SB 1406. § 4.1-1108 maintains the current penalty for a first offense — a $25 fine. A second offense may require substance abuse treatment or an education program. A third or subsequent offense is a Class 4 misdemeanor.
Yes. § 4.1-1108 re-criminalizes even first- offense public consumption of cannabis, imposing a Class 4 misdemeanor (a criminal fine of up to $250).
HB 2312. However, we urge subsequent penalties remain civil. SB 1406 goes backwards, re-criminalizing even first- offense public cannabis consumption.
Number of businesses allowed
The Board would establish the number of licensees, which could not exceed 400 retailers, 25 wholesalers, 450 cultivators, and 60 product manufacturers. § 4.1-607 (C)
The Board would establish the number of licensees, except that it could not cap licenses of Class B growers, which could grow no more than 1% THC cannabis. § 4.1-607 (C)
HB 2312. We prefer no numerical cap so that regulators can allow a variety of product options and enough supply to meet demand.
Does the bill allow medical businesses to participate?
No. Vertical integration is banned. Because all medical businesses are vertically integrated, they could not participate. § 4.1-805.
Yes. Vertical integration is allowed with the payment of a $1 million fee for social equity start-up and an approved equity and inclusion plan. § 4.1-805 (D)
SB 1406. SB 1406 will prevent medical providers from going out of business by allowing them to participate in the adult-use market in a manner that is consistent with equity goals.
Limit on licenses
“No person shall be granted or have interest in more than five licenses.” § 4.1-805 (C)
There is not a cap on the number of licenses an individual may hold, except that they are limited to five cultivation licenses until at least January 1, 2024, at which point the Board can expand that cap.
No strong preference.
Local opt out?
No.
Yes. Localities could ban cannabis stores by voter referendum. § 4.1-629
No strong preference.
Advisory referendum on legalization?
No.
Yes. This non-binding question would be on November’s ballot, “Should the state legalize the sale of recreational marijuana from privately licensed retailers, wholesalers, and growers for use by adults?” Section 24.
HB 2312. But if the question is asked, the wording should be modified to clarify that taxes would be levied and that it would be limited to adults 21 and older.
In addition to our feedback on the two bills’ approaches, we strongly urge the revision of § 4.1-1111 in both bills. This section would make it a Class 1 misdemeanor — punishable by up to a year in jail — to “import” any amount of cannabis from anywhere outside of the Commonwealth. Up to an ounce must be exempted. Otherwise, it will be re-criminalizing conduct — with a possible lengthy jail sentence — that is currently punishable by a $25 civil fine.
For example, it is already legal for adults in Washington, D.C. to grow cannabis and share it with other adults. Today, if a Virginia resident obtained a small amount of cannabis from an adult in our nation’s capital and returned to Virginia with it, this behavior would be penalized with a $25 fine. But if either SB 1406 or HB 2312 becomes law without this section being revised, the Virginia resident would face up to a year in jail. Additionally, both D.C. and Maryland may have legal sales before Virginia, so this provision would even criminalize returning to Virginia with cannabis that has been legally purchased from a regulated market.
This provision can be expected to lead to intrusive, insulting, and possibly dangerous police-civilian interactions where law enforcement demands proof of the origin of cannabis, such as by demanding receipts. This would be a very big step in the wrong direction.
