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Youngkin proposes new crimes for pot possession, changes to CBD retail

Gov. Glenn Youngkin’s proposed amendments would add a misdemeanor for marijuana possession above two ounces but below a pound. (Robb Hill for The Washington Post)

Gov. Glenn Youngkin (R) has proposed increasing the penalty for personal possession of more than two ounces of marijuana in Virginia, less than a year after it became the first state in the South to legalize recreational use.

Youngkin’s amendment would also limit what hemp products can be sold — a change that some CBD sellers saw as a victory compared to the more restrictive bill that came to his desk.

Under the current law, it’s legal for Virginia adults 21 and over to possess up to an ounce of marijuana and cultivate up to four plants in their household. Possessing more than one ounce but less than a pound is subject to a civil penalty of $25, while possessing more than a pound is considered a felony, punishable by up to 10 years in prison. Youngkin’s proposal would create two new tiers of enforcement: a Class 2 misdemeanor for personal possession of more than two ounces, and a Class 1 misdemeanor for more than six ounces but under a pound.

A Youngkin official said the increased-penalty suggestion came from a recommendation by the state’s Joint Legislative Audit and Review Commission, which said Virginia was the only state that had legalized small amounts of marijuana but did not include a criminal misdemeanor for amounts above the legal limit.

“In contrast with other states, Virginia’s penalty structure for illegal possession escalates from a civil penalty directly to a felony offense,” the JLARC report reads. “All other legalized states have a misdemeanor charge for possession above the legal amount.”

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Youngkin’s proposals mark the first clear action he has taken on marijuana legalization since he was elected. The governor’s amendments for this special session will go to the House and Senate for approval April 27.

Democrats quickly pushed through marijuana legalization last spring while they still controlled the state government, but left the drug illegal to buy or sell until a framework for the industry could be set. That framework was left in limbo, however, after Republicans won the House of Delegates and governor’s mansion in November, further complicating the debate over what legalization should look like — and who should profit from it.

Youngkin made the enforcement proposal Monday as an amendment to a bill sponsored by Sen. Emmett W. Hanger Jr. (R-Augusta) that was originally intended to regulate the hemp market and prohibit retail marijuana products in the shape of a human, animal, vehicle or fruit.

Some legalization and social equity advocates this week voiced concern about the consequences of adding new criminal offenses for personal possession — especially for Virginia’s communities of color.

Democrats had framed much of their legalization push as a step to limit disparate enforcement of drug laws. Black Americans are arrested at 3.64 times the rate of White people for having marijuana, even though they use it at similar rates, according to an American Civil Liberties Union review of charges between 2010 and 2018.

“This change by the Administration would reactivate the criminalization of marijuana by taking people back to criminal court with the possibility of incarceration,” the Joint CannaJustice Coalition, a group of social-equity and legalization-advocacy organizations, wrote in a statement Tuesday. “This criminalization of a legal substance stops people from accessing housing, increases chances of deportation, and blocks student loan opportunities. Legislating new crimes associated with the possession of marijuana is working away from the priorities of decriminalization.”

Youngkin spokesperson Macaulay Porter said the amendments were modeled after the JLARC findings, “which considered the disproportionality of marijuana enforcement in Black communities.” A Youngkin official said the governor’s office saw the amendments to Hanger’s bill as an opportunity to bring back the enforcement aspects and implement the JLARC recommendation.

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A separate bill, proposed by Sen. Adam P. Ebbin (D-Alexandria), had become this legislative session’s main vehicle for nearly all marijuana-related measures — including an added Class 3 misdemeanor offense for personal possession of more than four ounces. But that bill, which was more than 200 pages in length and would have allowed legal recreational sales to start later this year, failed to pass the GOP-controlled House of Delegates, where leadership said the bill was too big to tackle in the final days of session.

Advocates and groups who worked on Ebbin’s legalization bill were frustrated to see the governor take steps to add criminal penalties after House Republicans did not address the issue of setting the framework for legal sales.

“Instead of creating new ways to criminalize Virginians for personal possession of legal cannabis, the administration ought to be focused on establishing a retail market for adult-use marijuana to ensure that products are safe, convenient, affordable and sold only to those 21 and over,” said JM Pedini, development director of the National Organization for the Reform of Marijuana Laws and executive director of Virginia NORML.

Said Ebbin, who has been one of the primary voices in Virginia’s legalization push: “While it’s maybe appropriate to establish the intermediate penalty, it seems a little bit harsh to have jail time for people using a legal substance.”

Youngkin also proposed amending Hanger’s bill to change regulations around the hemp market — raising the minimum age to buy CBD products to 21 and banning products with Delta-8 THC, a hemp-derived compound that has become popular for its similarity to Delta-9, the main compound in marijuana that gives consumers a high.

Before Youngkin’s amendments, Hanger’s bill would have significantly tightened the amount of concentrated THC that was legal to sell in hemp products. Hanger said he heard from businesses in the CBD market that were concerned his bill would drastically limit their products and business, so he worked with Youngkin to find a compromise.

“I will credit the administration — they gave me a lot of input, and we debated it and came to a compromise on what the bill would have in it,” Hanger said. “From my standpoint, this bill should pass, but then we need to continue working on this product.”

The Youngkin official said the changes to the hemp regulations were designed to strike a balance between consumer safety and preserving access to the full spectrum of the CBD market.

“The bill that was passed by the House and Senate would basically have banned the whole CBD industry,” said Derek Wall, owner of the Buffalo Hemp Company in Floyd County. “Governor Youngkin kind of saved the CBD industry.”

At the same time, advocates who were hoping to see a stronger crackdown on unregulated and synthetic products said the governor’s proposed regulations were too loose. Pedini, of NORML, lamented that the changes, which would only limit Delta-8, would leave the door open for other synthetically modified and extremely potent versions of THC to enter the market.

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Wall said he was disappointed to see the proposed Delta-8 restrictions, too. He was originally opposed to selling Delta-8 products, he said, but as he saw the product become more popular, selling it became a necessity to stay in business.

And while he saw Youngkin’s amendments as a major improvement to the bill that passed, Wall said he was left frustrated by the politics of the cannabis debate. The top priority for him and many others in the state, he said, remains unaddressed.

“We need to make sure legislation is passed next session that opens up the retail market of cannabis,” Wall said. “That’s where we need to be, and that’s what I’m focusing my time on.”

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