(703) 369-4738

6
Oct
2021

Part 5: Marijuana and Cannabis Laws: What became legal on July 1, 2021? What is still illegal? What will become legal in the future (and when)?

Marijuana became legal in Virginia for the first time in July 2021. 

But it is not entirely unregulated; there are still laws and regulations that govern its use, gifting, growing, sales, and more. In this blog – part of Vanderpool, Frostick, & Nishanian, P.C.’s series featuring our new cannabis practice area – we explore what is legal and illegal and what future changes are coming as well.  

Please keep in mind that this is a general legal summary for informational purposes only. If you have specific questions or would like to discuss a case, please contact us directly. Nothing in this blog should be considered legal advice.   

What is now Legal?

  • Adults 21 years and older may possess not more than one ounce of cannabis for personal use.
  • Generally, adults 21 years and older may use marijuana in private residences. However, nothing prohibits the owner of a private residence from restricting the use of marijuana on its premises.
  • Adults 21 and over may grow up to four plants per household (not per person), according to specified requirements (see below).
  • “Adult sharing” or transferring one ounce or less of marijuana between persons who are 21 years or older without remuneration is legal. “Adult sharing” does not include instances in which (i) marijuana is given away contemporaneously with another reciprocal transaction between the same parties; (ii) a gift of marijuana is offered or advertised in conjunction with an offer for the sale of goods or services, or (iii) a gift of marijuana is contingent upon a separate reciprocal transaction for goods or services. At its essence, you cannot barter marijuana for anything else of value.

What is still Illegal?

  • It remains illegal for anyone to possess more than one ounce of marijuana. Individuals found guilty of possessing more than one ounce but not more than one pound of marijuana are subject to a civil penalty of not more than $25. Individuals found guilty of possessing more than one pound are subject to a felony.
  • It remains illegal for anyone under the age of 21 to consume, purchase, or possess marijuana, or to attempt to consume, purchase or possess any amount of marijuana.
  • It remains illegal to distribute or sell marijuana and/or to possess any amount of marijuana with the intent to distribute or sell it. This prohibition applies equally to businesses, which will not be permitted to sell, “gift,” or in any other way distribute marijuana. For more information on how to obtain a license to sell marijuana in the future, please see below.
  • Existing safety measures remain in place, including prohibiting the use of marijuana while driving a motor vehicle or while being a passenger in a motor vehicle, possessing marijuana on school grounds, while operating a school bus, in a motor vehicle transporting passengers for hire, or in a commercial vehicle.
  • It remains illegal to consume marijuana or offer marijuana to another person in any public place.

When will sales of marijuana begin?

It will not be legal to sell marijuana in Virginia before January 1, 2024. The law will create a new, independent political subdivision to regulate the marijuana industry. While the Cannabis Control Authority (CCA) began its work in July 2021, it will take time for the authority to hire staff, write regulations, and implement equity and safety initiatives. Additionally, many of the regulatory sections of the marijuana legalization bill must be reenacted (approved again) by the 2022 General Assembly before becoming law. For more information on the commercial market, please see below.

Medical Cannabis

I have a medical condition. How do I get a medical card to buy cannabis products?

To purchase cannabis for medical purposes, a patient must have both (a) an unexpired written certification issued from a board-registered practitioner and (b) a current active patient registration issued by the Board of Pharmacy. You can find more information by visiting the Department of Health Professions: Board of Pharmacy’s website.

Can I get a license to sell medical cannabis?

Not as of July 20, 2021. Virginia’s medical cannabis pharmaceutical processor program is currently only authorized to permit five companies (one permit in each Virginia Department of Health Service Area) to cultivate, process, and dispense medical cannabis to registered patients. You can find more information about Virginia’s medical cannabis pharmaceutical processor program by visiting the Department of Health Professions: Board of Pharmacy.

Adult-Use Cannabis Commercial Sales

How will the cannabis industry be regulated?

On July 1, 2021, the law authorized the creation of the Cannabis Control Authority (CCA), a new, independent political subdivision to regulate the marijuana industry, including issuing licenses for businesses, creating health and safety guidelines, and promoting diversity within the industry. On July 19, 2021, Governor Northam appointed the Cannabis Control Authority’s Board of Directors members. The Board, along with a CEO, will lead the creation of an adult-use marketplace. However, the CCA will not complete marijuana regulations or begin accepting applications for businesses before 2023.

When can I apply for a marijuana business license?

It will not be legal to sell marijuana before 2024. Until then, it remains a crime to sell any amount of marijuana. However, if the licensing provisions of the bill are reenacted (approved again) in the 2022 General Assembly session, you will likely be able to apply for a marijuana business license in 2023. More instructions and guidance for people wanting to start a marijuana business will be released before the application period begins.

Are there any steps I need to take before applying for a license in 2023?

Not at this time. The Cannabis Control Authority will begin the regulatory process and start engaging more directly with interested stakeholders over the next two years.

Home Cultivation

Can I grow marijuana at home?

“Home Cultivation” became legal on July 1, 2021. Adults 21 and over may now grow up to four marijuana plants per household (not per person) for personal use. Plants can be grown only at your primary place of residence.
Someone who grows plants must:

  1. ensure that no plant is visible from the public;
  2. take precautions to prevent unauthorized access by persons younger than 21 years of age; and
  3. attach to each plant a legible tag that includes the person’s name, driver’s license, or ID number, and a notation that the marijuana plant is being grown for personal use as authorized by law.

It remains illegal to grow more than four plants, to sell or distribute marijuana grown at home, or to manufacture marijuana concentrate from home-cultivated marijuana. Individuals who choose to do so are subject to criminal penalties.

For four free plant tags that meet all of Virginia’s legal requirements, please Contact Us – Vanderpool, Frostick & Nishanian, P.C. 

Where can I buy seeds to grow my own at home?

It remains illegal to sell marijuana seeds, clones, flower, or any other part of the marijuana plant in Virginia before 2024. Although there are some states that already have legalized marijuana sales, it remains federally illegal to move marijuana across state lines. You can, however, receive seeds and clones as a gift without remuneration of any kind.

Can I sell my home-grown marijuana to my friends?

No. The existing criminal penalties for selling or distributing marijuana or possessing marijuana with the intent to sell or distribute remain in effect. Individuals who sell marijuana or who possess it intending to sell it are subject to misdemeanor or felony charges, depending on the amount of marijuana involved. You may, however, gift marijuana to friends so long as all other requirements are met, i.e., that you receive no remuneration, that the person is an adult, that you gift them one ounce or less, etc.

If you would like more information or to find out how our team can help you or your business, please allow us to answer your business, employment, local government, land use, regulatory, and criminal law questions regarding cannabis and marijuana legalization. Please visit our Cannabis Laws website at Cannabis Laws – Vanderpool, Frostick & Nishanian, P.C. for more information.

31
Aug
2021

Part 1: Medical use of cannabis oil, what the new law says!

Virginia’s new law that prohibits employers from discharging, disciplining, or discriminating against an employee for the employee’s lawful use of cannabis oil.

Virginia recently enacted a new law that makes it unlawful for employers to discharge, discipline or discriminate against an employee for the employee’s lawful use of “cannabis oil.”  In order for the use to be lawful, it must be obtained pursuant to a valid written certification issued by a medical practitioner, who has registered to write such certifications with the Board of Pharmacy, for the treatment or to eliminate the symptoms of a person’s diagnosed conditions or disease. In addition, the patient with the certification must also register with the Board of Pharmacy as well as obtain the cannabis oil from one of the five registered medical cannabis pharmaceutical processor dispensaries in Virginia.  In the event that an employer has an employee that has a medical condition for which they have lawfully obtained cannabis oil pursuant to the above-described process, the employer may not discharge, discipline or discriminate against such employee for the employee’s lawful use of cannabis oil.  It is important to note that the new law does not protect those who are using cannabis products recreationally or who are using cannabis products for medicinal purposes but have not complied with the proper procedures required by the law.

CBD Oil Chemical markersThat leads us to the next question – what is Cannabis oil?

The new law defines cannabis oil as “any formulation of processed Cannabis plant extract, which may include industrial hemp extract acquired by a pharmaceutical processor … or a dilution of the resin of a Cannabis plant that contains at least five milligrams of cannabidiol (CBD) or tetrahydrocannabinolic acid (THC-A) and no more than 10 milligrams of delta-9-tetrahydrocannabinol (THC) per dose.” As the purpose of the Cannabis Oil under this law is to treat medical conditions, the law is very specific as to the content of cannabis products.

Cannabis oil should not be confused with CBD products available without a prescription and represented as having low amounts of THC. You can go to stores now where you may have CBD oils or cannabis products that are the kind that are not controlled and regulated by a medical cannabis pharmaceutical processor dispensary as part of a medicinal remedy. The use of these cannabis products are not what this law is intended to protect. If you have somebody who goes to a local store and buys some CBD product and then ends up in some circumstance where they test positive for marijuana, that’s not protected. It is the use related to medicinal use and only if the proper procedures are followed.

If an employee’s work is impaired by the use of medicinal cannabis, Employers may still take adverse action.

Employer’s still retain the ability to take adverse employment action against an employee with a medical certification if the employee’s work is impaired caused by the use of cannabis oil.  Employers may also prohibit possession of cannabis oil during work hours.

Please contact Kristina Keech Spitler, kspitler@vfnlaw.com or 703-618-3205 should you have any questions or need assistance

4
Aug
2021

New Associate Joins VF&N

Vanderpool, Frostick & Nishanian, P.C. is pleased to announce the addition of our newest associate Monica Munin. She is currently licensed and authorized to practice law in the District of Columbia. Her practice includes employment law as well as litigation.

Prior to joining VF&N, Ms. Munin worked as an associate at Brustein & Manasevit PLLC in Washington, D.C, where she specialized in administrative litigation and compliance consulting for Local Education Agencies (LEAs) as well as State Education Agencies (SEAs). Prior to obtaining her law license, Ms. Munin served as an intern for the Honorable William Jarvis in Prince William General District Court as well as a paralegal for a general practice law firm in New York City.

Monica Munin Associate

Monica Munin
Associate

7
May
2020

Failure to Protect Employees From Covid-19 can Result in Fines or Worse

With a steady increase of reported COVID-19 infections, employers face increased risks regarding their employees’ safety. Risks include potential fines and other penalties from the Occupational Safety and Health Administration (OSHA) for violation of the OSHA Act.

Employers Have an Obligation

Under the OSHA Act, employers have an obligation to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” https://www.osha.gov/laws-regs/oshact/section5-duties

Preparing WorkPlaces

Since many employees working outside of their homes often physically interact with other people, employers should take steps to limit their employees’ risk of infection. To help employers reduce the risk of worker exposure to COVID-19, OSHA recently issued Guidance on Preparing Workplaces for COVID-19. https://www.osha.gov/Publications/OSHA3990.pdf

In addition to this OSHA guidance, the Centers for Disease Control and Prevention (CDC) issued Resources for Businesses and Employers, which also provides guidance on how employers can prepare for and respond to COVID-19. https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/businesses-employers.html

Employers should review both OSHA and CDC guidance and follow recommended procedures, especially if their employees are in jobs classified as high or very high exposure risk. OSHA and CDC guidance discusses different steps employers may take to protect employees, including providing Personal Protective Equipment (PPE). The type of PPE that an employer will need to provide can vary based on the employee’s risk classification or occupation. For example, OSHA does not recommend PPE for workers in the lower exposure group, but workers in a very high risk group would likely need to wear gloves, a gown, face shield, and in some cases a respirator.

OSHA has Received Thousands of Complaints

If an employee feels that their working environment threatens physical harm or an imminent danger, the employee can make a complaint to OSHA. https://www.osha.gov/as/opa/worker/handling.html. Since the onset of the pandemic, OSHA has received thousands of complaints against employers related to COVID-19, and OSHA recently provided data showing an increase in the number of OSHA complaints and inspections. https://www.osha.gov/enforcement/covid-19-data#complaints_selected. If an employer does not furnish a place of employment free from recognized hazards, that employer can be subject to civil penalties for each violation (and/or imprisonment of up to six months if willful). https://www.osha.gov/laws-regs/oshact/section_17.

Employers Face Risks Beyond OSHA Violations

Employers face risks from COVID-19 beyond OSHA violations, as employees can bring lawsuits against their employers for claims including negligence and wrongful death. Since the start of the pandemic, employees have already begun filing claims against employers stemming from COVID-19, including lawsuits against retailer Walmart.

Employers should take actions recommended under OSHA and CDC guidance to minimize employee risks related to COVID-19. An employer’s failure to protect its employees can result in potential fines, lawsuits, or even imprisonment.


Please note that this summary is designed to provide general information, is not intended to constitute legal advice, and should not be utilized as a substitute for professional services in specific situations.  If legal advice or other expert assistance is required, please consult with an attorney.

VF&N’s Employment Law Team

30
Mar
2020

Virtual Meetings and Consultations Now Available

In efforts to continue to serve our clients in a safe and CDC compliant manner, we are now offering virtual meetings and consultations.

If you are interested in scheduling a virtual consultation or meeting with your attorney, please call 703-369-4738 and one of our legal assistants will schedule a zoom appointment.

27
Jan
2020

VF&N Welcomes New Attorney

Vanderpool, Frostick and Nishanian, P.C. is pleased to announce Brad Marshall has joined our firm.

Bradley Marshall joins VF&N as an associate. He brings over a decade of experience as an Assistant Commonwealth’s Attorney in Prince William County, Virginia. Mr. Marshall is leading the firm’s launch of its Criminal, Traffic and White Collar Defense practice, assisting in our expanding Investigations practice, and working with our Civil Litigation and Municipal teams.

About Vanderpool, Frostick & Nishanian, P.C.

Vanderpool, Frostick & Nishanian, P.C. is a law firm located in Manassas, VA. Established in 1986, we have served clients for over 30 years in business law, commercial real estate, litigation, lending, IP, employment law, land use and zoning, municipal law and now, with our most recent addition, criminal defense.

To learn more about Vanderpool, Frostick & Nishanian, P.C., visit our about us page.