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April 3, 2022

Legislators have nipped Virginia’s budding cannabis industry, advocates say

CNS Photo/Morgan Edwards
Jacob Stretch showing his industrial hemp flower at Field Station Farm in 2019.
By Josephine Walker
Capital News Service

RICHMOND -- Jacob Williamson grows, makes and sells hemp-based CBD products through his family’s Hens and Hemp farm. He went through the permitting process to be a hemp farmer when it became legal in 2019, but now he is leaving the industry.

“We can't keep up with the multimillion-dollar cannabis industry coming into the state,” Williamson said. “So, we're just gonna stop because it's too much.”

Williamson represents a group of entrepreneurs concerned about the future of the commercial hemp industry in Virginia, because of what they say is the risk and increased regulation of selling these products.

Industrial hemp definition changes

Sen. Emmett Hanger, R-Augusta, introduced Senate Bill 591 which originally focused on the prohibition of cannabis goods that can be easily confused with everyday treats, and that are shaped like a “human, animal, vehicle, or fruit.”

“It would restrict the use of products that appeal to children through gummies,” Hanger said in committee.

The Virginia General Assembly allowed farmers to grow industrial hemp starting in 2019.

Lawmakers passed an amended version of Hanger’s bill, which redefines marijuana as any cannabis product with over .3% THC or .25 milligrams of THC per serving. That includes some non-intoxicating CBD products. The bill, however, excludes industrial hemp that is possessed by a person or company who holds a U.S. Department of Agriculture hemp producer license, as long as the THC level remains under .3%.

It is currently legal to possess, but not sell marijuana in the state of Virginia.

The .3% THC threshold comes from the 2018 Federal Farm bill. Anything over .3% THC is still federally defined as marijuana. In 2018, most marijuana used recreationally contained over 15% THC, according to the National Institute for Drug Abuse.

Hemp advocates are upset because they say the bill will limit product sales of items from edibles to salves.

Barbara Biddle, owner of District Hemp Botanicals, which has locations in Leesburg, Manassas and Washington, D.C., said SB 591 “will introduce the strictest mandates on hemp-derived products of any state in the nation, completely backtracking major progress the state has made towards destigmatizing cannabis.”

Biddle says the measure will effectively change the definition of “marijuana” and take her inventory of over 650 products and trim it down to just 100, limiting customers' ability to access hemp products by up to 85%.

“I wholeheartedly agree with the intention of keeping potentially intoxicating products out of the reach of children,” Biddle said. “But this bill goes far beyond that and outlaws non-intoxicating products. Simple age restrictions and licensing requirements, like what is being proposed in Tennessee, can accomplish the same goal without limiting consumer access to non-intoxicating hemp products.”

Hanger told a Roanoke Times reporter recently that lawmakers “kind of stirred a hornet’s nest” but there is time to work on the bill before the legislature reconvenes in late April.

'Delta-8' legal loophole

Legislators want to crack down on the sale of Delta-8-THC, which has a similar chemical structure as the main psychoactive compound, or Delta-9, found in marijuana that gets users high. Delta-8 typically comes from hemp-derived CBD, according to the Food and Drug Administration.

Many Delta-8 products, which are low in THC, are made in a lab because additional chemicals are needed to increase the amount of THC, according to industry website Cannabis Tech.

The products get people buzzed, but still fall into a legal loophole. And a few adverse reactions to Delta-8 products have been reported to the FDA.

“I recognize there are a lot of legitimate businesses with legitimate products out there that shouldn't be forced out of the market,” Hanger said. “But I think the broader issue right now is public safety.”

The U.S. Hemp Roundtable, a national advocacy group for hemp cultivators, stated in a press release that it supports regulation for public safety, but that new regulations are too broad.

“Advocates for SB591 provided no scientific basis or public safety justifications for these arbitrary restrictions,” the group stated.

The Virginia Hemp Coalition is an industrial hemp education and advocacy group whose goal is to create new agricultural and manufacturing opportunities for hemp farmers. The group has been involved in campaigns to amend SB 591 and shared a petition that has garnered almost 4,000 signatures. The group also wants Congress to expand the THC threshold to 1% in the next Farm Bill.

The Virginia Department of Agriculture and Consumer Service issues hemp permits and tests THC concentrations of hemp plants. The THC levels increase as CBD levels increase in the cannabis plant. Growers run the risk of getting higher THC levels in their cannabis plants in order to get a higher amount of CBD.

Henry Watkins, chief of staff for Sen. Adam Ebbins, D-Alexandria, said hemp growers might see a little more regulatory oversight, more testing and enforcement.

“I think folks who are saying this wasn't enforced before are really saying ‘no one enforced it on me before,’” Watkins said.

Nipping the budding market

Many stores throughout Virginia since 2019 began selling a variety of CBD-based, low-THC products for a variety of reasons and ailments.

People who want to buy actual, high quantity THC marijuana can easily find it, despite the risk of prosecution. Some sellers offer delivery options and showcase product menus on social media. Many people began operating in those spaces when marijuana possession was decriminalized and in anticipation of the legal recreational market that many thought was greenlit for 2024.

Both parties mostly agreed a legal recreational marijuana market would generate substantial tax revenue for Virginians, but the session ended without lawmakers adopting a framework for sales.

The bill that passed in 2021 needed to be reenacted in the 2022 session, but a House committee continued the bill to the next session next year, effectively killing the reenactment clause and likely the January 2024 start date for recreational sales. The only way marijuana can be obtained legally is if it is grown or gifted, or if an individual has a state-issued medical marijuana card.

David Treccariche sells lab-tested CBD products at his boutique dispensary Skooma in Charlottesville. Hanger’s bill was an “absolute death nail in the coffin” for the industry, he said.

Treccariche said he expected small business owners to be more involved in cannabis policy making.

“They’re [Republicans] theoretically, pro-small business, limited government, limited oversight, limited regulations,” Treccariche said. “He's a Republican, he should
improve small businesses. Why would he shut me down?”

Treccariche’s products have QR codes for consumer protection, with nutrition information and THC concentrations for his products.

Senate President Pro Tempore Louise Lucas, D-Portsmouth, is co-owner of a Norfolk shop that sells legal CBD products. Some products sold at the store were over the threshold for allowed THC, according to a report published by the Virginia Mercury. The dispensary could be affected by Hanger’s legislation.

Lucas, who co-patroned the 2021 legislation that decriminalized simple possession of marijuana, voted for Hanger’s original bill but not the final amendment. She did not respond to repeated phone and email requests for comment on the bill.

Michael J. Massie, an attorney and board member of the Virginia Cannabis Control Authority, said there is no gray area for selling marijuana products.

“There is no provision that allows for the legal sales of marijuana at this juncture,” he said. “You sort of put yourself in a very precarious position where you might be prosecuted.”

Marijuana advocate Dylan Bishop, a lobbyist for the Cannabis Business Association of Virginia, argued in a committee hearing that having a legal market allows consumers to verify a product’s authenticity.

The association doesn’t think limiting the definition of hemp or cracking down on low THC levels in CBD products is the best course. Instead, they suggested stringent testing and labeling requirements, which advise the consumer of any potential psychoactive effect.

The General Assembly will hold its reconvene session on April 27. Hanger said he is open to suggestions about modifying his bill.

“Let's regulate some stuff for safety,” Williamson said. “I can see that. However, they probably didn't realize how far a little law could change a lot for a bunch of farms.”

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