Virginia Legislation to Legalize Cannabis SB 1406 and HB 2312 – The National Law Review

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While adult-use cannabis legalization has been gaining popular support across the country, many state legislatures have been slow to translate that support into legislative action.  That is changing in Virginia.  In 2020, Virginia decriminalized the simple possession (up to an ounce) of cannabis while providing a civil penalty up to $25.  On February 5, 2021, the Virginia House and Senate took another significant step further when both passed bills approving adult-use cannabis legalization in Virginia.  Senate Bill 1406 passed on a 23-15 vote.  House Bill 2312 passed on a 55-42 vote. 

There are differences in the bills that must be resolved in a conference committee.  However, an adult-use legalization bill is likely to pass through conference and be sent for Governor Ralph Northam’s signature.  Governor Northam has already stated his support for legalizing adult-use cannabis.  With passage, Virginia would become the 16th state to legalize recreational cannabis, but only the 3rd state to do so solely through the legislative process.          

Key Rules and Penalties Found in Both Bills:

  • Adults who are 21 or older can possess up to one ounce of cannabis or an equivalent amount of cannabis product.

  • A household can cultivate up to two mature and two immature cannabis plants at their primary residence. 

  • Possessing more than an ounce of cannabis remains punishable by a civil fine up to $25.

  • Possessing more than five pounds could result in up to 10 years in prison.

  • Possession on school grounds could result in up to 6 months in jail.

  • Bringing any cannabis into Virginia would be punishable by up to 1 year in jail.

Regulatory and Licensing Framework Found in Both Bills:

  • A Cannabis Control Authority, governed by a five-member board of directors, will be created to regulate the adult-use cannabis market.  

  • Licensing priority will be given to social equity applicants.

  • A Cannabis Business Equity and Diversity Support Team will be created.

  • A Cannabis Public Health Advisory Council will be created to make public health recommendations.

  • Requirements for seed-to-sale tracking, packaging, and labeling, including state-created risk information and warning labels, are included.

  • A state tax of 21% would be levied at the point of sale.  Localities could impose their own tax up to 3%.

  • Portions of the tax revenue would be earmarked for pre-K education for at-risk children and substance abuse treatment and prevention, among other things. 

Both bills also provide automatic expungement of misdemeanor marijuana–related offenses and allow for petitions for expungement of marijuana-related felonies under certain circumstances.

The House and Senate bills differ in the role and scope of local government involvement.  The Senate bill allows localities to ban cannabis stores by voter referenda.  

Both bills set January 1, 2024 as the earliest date for beginning the retail sale of cannabis.  As Virginia moves forward toward 2024, the regulatory framework will continue to grow in size and complexity at both the state and local levels.  

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Copyright © 2020 Womble Bond Dickinson (US) LLP All Rights Reserved.National Law Review, Volume XI, Number 42

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