Governor Glenn Youngkin has asked the General Assembly to approve creating two new marijuana misdemeanors: a Class Two misdemeanor for possessing more than two ounces and less than six ounces of marijuana, and a Class One misdemeanor for possessing more than six ounces but less than one pound of marijuana, the felony limit. Youngkin introduced the changes in an amendment to Senator Emmett Hanger’s (R-Augusta) SB 591, a ban on selling marijuana products in the shape of a human, animal, or fruit.
Hanger, who did not support marijuana legalization, said he preferred his bill the way the General Assembly passed it, but was part of discussions about the amendment with Secretary of Agriculture and Forestry Matt Lohr, Deputy Secretary Parker Slaybaugh, and Youngkin aide Matt Moran. Hanger advocated for another change also included in the amendments package prohibiting retail sale of synthetic delta-8, a type of THC which can be processed from hemp plants. Hanger said it’s commonly used in edibles and vape products.
In a 2020 study, the Joint Legislative Audit and Review Commission (JLARC) said that one ounce is a normal amount used by one person in a month. JLARC recommended “establishing clear, graduated civil or criminal penalties for possessing quantities of marijuana, concentrates, and infused products over a legal limit.”
“Penalties for marijuana possession above amounts needed for personal use may help deter illegal distribution. All states that have legalized or decriminalized marijuana establish specific civil and/or criminal penalties for possessing marijuana over the limit,” the report said.
Under current law, possession of more than one ounce of marijuana is punishable by a maximum $25 civil penalty, and possession of a pound or more is a felony punishable by a minimum of a year, a maximum of 10 years, and/or a fine of $250,000.
Hanger and a Youngkin spokesperson said adding the misdemeanors is meant to follow the JLARC recommendations.
“So JLARC recommended, following suit with some other states, that that’s too big a gap there. You get a $25 fine and then immediately go to a felony, that it would be better to stagger it,” Hanger told The Virginia Star.
Cannabis advocates say Youngkin is seeking to recriminalize marijuana, which was decriminalized in 2020 and legalized in 2021.
“Instead of creating new ways to criminalize Virginians for personal possession of cannabis, Governor Youngkin’s administration would better serve his constituents by establishing a legal adult-use marijuana market and ensuring that all cannabis products sold in the Commonwealth are accurately labeled and regulated for consumer safety,” Executive Director of Virginia NORML JM Pedini said in an update.
Although marijuana was legalized in 2021, legislation to create commercial sales structure required passage again this year. House Republicans did not advance that legislation, so commercial sales for recreational use will remain illegal in Virginia. Hanger said that the amendment creating possession misdemeanors is meant to curtail illegal sales, and that it would need to be revisited to create commercial sales regulations.
Hanger said one of the more important parts of the legislation is the ban on selling marijuana with certain shapes. On April 15, the Stafford County Sheriff’s Office reported that three 1-year-old toddlers were treated in an emergency room and found to have been exposed to THC. The Sheriff’s Office said that goldfish crackers containing THC were found around the three children’s chairs at a licensed daycare provider. Hanger said the children had been exposed to delta-8.
“We really don’t have a regulatory format to deal with that appropriately,” Hanger said.
In the NORML update, Pedini said, “The proposed amendments not only undermine the original consumer safety objectives of SB 591, but codify loopholes for synthetic marijuana and high-THC products to be sold at retail and wholesale outside of the strict regulatory oversight currently required for legal cannabis products produced in Virginia.”
Youngkin also signed bills that Pedini said would improve medical cannabis operations, in part by eliminating a requirement that patients register with the Board of Pharmacy. Instead, they’ll only need a written certification from a registered practitioner.
Youngkin’s amendments to SB 591 need to be approved by the General Assembly; Republicans in the House are likely to approve the changes, and State Senator Chap Petersen (D-Fairfax City) often votes with Republicans against expanding marijuana legalization, giving the amendments a path to a tie-breaking vote by Lieutenant Governor Winsome Sears. But Hanger thinks it won’t be that close.
“I would think a lot of the Democrats would come on board. I wouldn’t know any reason why they wouldn’t,” he said. “I don’t think this is an R and a D vote.”
State Senator Louise Lucas (D-Portsmouth) owns a cannabis shop. In February, The Virginia Mercury reported that her shop was selling products containing small amounts of THC. Lucas and other Senate Democrat leaders are taking pride in blocking Youngkin’s legislative goals.
“The Governor can uphold a veto with Republican votes only as it takes 2/3 to override,” Lucas said in a tweet after the amendments were announced. “On amendments he needs a majority to agree with him. He needs Senate Democrats to help him. One of his amendments is to recriminalize marijuana.”
The tweet ends with a graphic showing Lucas saying “No, no, no, no.”