Dear Friend,

You may be aware that during the regular 2021 legislative session the General Assembly made some limited headway in regulating cannabis for sale in the Commonwealth. I'll admit, I'm no expert, but I do my homework, having served on two of the committees that considered this bill, and I have some grave concerns about Governor Youngkin's substitute amendment on SB 591 before us now. His proposed an amendment in the nature of a substitute would make some drastic changes to the bill that will have serious safety repercussions consumers of these products. 

As originally passed, SB 591 prohibits the sale of cannabis products in certain shapes such as humans or animals to protect children from accidentally mistaking these edibles for candy. It also created labeling and industry-recognized limits for THC levels in milligrams per item so that consumers could understand exactly what they were buying. The bill passed through the General Assembly with strong bipartisanship support. You are probably also aware that in 2020, the General Assembly also decriminalized simple possession of cannabis.

Of significant safety concern for any user of these products, Governor Youngkin's substitute amendment to SB 591 drastically changes the levels of THC allowed to be sold and the way it is measured that is far outside of industry-recognized standards leaving consumers without an assurance of a safe and reliable product that was envisioned under the original legislation. It changes the measure of THC from milligrams per serving to percentage of total size which creates a serious problem for the safety of cannabis oils, concentrates and edible products sold in Virginia.  For example if the bill passed as amended, someone would be allowed to sell a brownie with 0.3% THC content.  One standard 90 g “full spectrum hemp” or “full spectrum CBD” brownie would result in a product containing 270 mg of THC.  To put that into perspective, a single medical cannabis dose dispensed in Virginia may contain no more than 10 mg of THC, so this single brownie would be 27 times that allowed strength! In the original bill, an edible cannabis product would be permitted to contain no more than 50 mg of THC and I offered the amendment clarifying that amounts must be measured in milligrams per item rather than be measured on a volume per item basis. I can only surmise that Governor Youngkin does not understand that his amendment undoes this and would allow the sale of a potentially unsafe product. But that is what his substitute amendment would do if accepted.

Additionally, Governor Youngkin’s substitute amendments do not include "synthetic tetrahydrocannabinols" in the definition of cannabis but instead single out delta-8 THC prohibiting solely the sale of it. That matters because other psychoactive forms of synthetic formulations exist, like delta-7, delta-10, and delta-11 which would be completely unregulated. Since the amendments do not provide a comprehensive ban on synthetics, future legislation would be required to address these existing synthetics and any potential new ones resulting in a whack-a-mole approach. The original bill as passed was amended and fixed this issue by setting a blanket THC limit on serving sizes on all cannabis products using industry-recognized standards based on milligrams not percentages.  Again, I believe this shows a serious lack of comprehension in legislating the complex issue of cannabis.

In crafting the original cannabis legislation, we spent over two years in three different committees in the Senate and with a stakeholder and legislators work group to identify and work out policy concerns such as penalties for possession and THC serving sizes. We didn’t assemble these bills in a slapdash manner but focused on the nitty-gritty in order to help the most people and prevent harm. The governor has thrown together his amendment without having done the due diligence necessary. These amendments placed on SB 591 is evidence that he does not understand the policy and has not taken into advisement policy experts advice.  For another example of this lack of understanding, his amendments direct the Department of Agriculture and Consumer Services (VDACS) to convene a work group despite VDACS lacking the expertise and capacity to handle these issues. That was the purpose of establishing the Virginia Cannabis Oversight Commission.  The existing oversight commission has already spent more than a year hashing out these details with a group of stakeholders who understand the policy concerns and challenges.
 
It may come as no surprise that I support the current cannabis possession laws stating that up to an ounce of cannabis is legal, between an ounce and a pound results in a civil penalty of $25 and only more than a pound leads to a criminal charge. I supported the original Senate cannabis legislation because certain segments of the Commonwealth population have been disproportionately hurt by the criminalization of cannabis, and legalization was a step to rectify some of those historic wrongs. 
 
The governor’s amendments makes it a class 2 misdemeanor with a minimum of 6 months in jail or $1,000 fine for possession of between 2 and 6 ounces of cannabis, and a class 1 misdemeanor with up to a year in jail or $2,500 fine for possession of more than 6 ounces but less than a pound. This is harsher than the law was prior to the decriminalization in 2020, and obviously significantly more than current possession laws and could result in the cultivation of a single plant turning into jail time. Lowering the amount of cannabis required for a criminal penalty will just result in certain communities being disproportionately affected by these laws all over again, and I cannot support that.

The governor’s amendment is not only bad from a criminal justice perspective but is also a major step backwards on the work that dozens of stakeholders and legislators have conducted regarding safety and oversight.  I want you to be informed so that you can use your voice if this concerns you too. And, I am hopeful that my colleagues will see the grave misstep here. You can count on me to oppose Governor Youngkin's amendment in the nature of a substitute to SB 591.

 

Kind regards,
Jennifer