New Industries Could Take Root as Cannabis Laws Change in Virginia
By Eric J. Wallace
When Charles steps onto the front porch of his brick, ranch-style home in rural Suffolk, the sweet, spicy reek of marijuana follows him outside. Paranoia jolts up my spine. The potency of the smell suggests substantial quantities—quantities that, were they discovered by law enforcement, would bring multiple felony charges, and probably jail time. It’s all I can do to avoid glancing around.
“It gives me the heebie-jeebies too,” Charles sighs by way of an apology, ushering me through the door.
It’s the fall of 2017, and six months ago, the 68-year-old was diagnosed with stage IV prostate cancer. A small man with a wry smile, he walks with a bit of a shuffle. His wife, Betty, a retired elementary school teacher, tells me her husband used to wear a mustache and goatee, but it disappeared when he began chemotherapy. Ditto for his formerly long, white hair.
I follow them through a living room hung with nondescript landscape paintings, a formal dining room featuring an old piano, into a small kitchen with a breakfast nook. There, the blinds are drawn. The overhead lights blazing. Arranged atop three cutting-boards on the dated linoleum countertop are several ounces of neatly chopped marijuana.
Charles invited me here to watch him transform the bright-green buds into cannabis oil.
Over the next few hours, he will repeatedly soak the marijuana in ethanol and subsequently sieve the plant fiber from the liquid. Then he runs the tincture through a coffeemaker for additional filtration. After that, an electric water distiller evaporates the alcohol. Finally, a “quality-control” test is conducted via dipping a needle in the dark brown oil and suspending it above a lit match—if it sparks, there’s still ethanol to remove.
The process is tedious. But it should yield an oil rich in concentrated medicinal compounds known as cannabinoids. The three-month supply is expensive, costing about $2,500. Like so many other cannabis oil users around the world, Charles and Betty hope it will help fight the cancer.
“I don’t much favor doing it this way,” laments Charles, “but in Virginia, you can’t go to a doctor and say, ‘I want highly-concentrated cannabis oil to help facilitate cell autophagy,’ and get a prescription. It’s either pick up and move, have it mailed to you from an unreliable source, or make the stuff at home and face potential criminal charges. It’s infuriating. It just doesn’t make any sense.”
Sadly, Charles’s situation is more common than you might think. So common, it has led Virginia lawmakers to pass groundbreaking new laws expanding the use of cannabis oils. Although these laws won’t make Charles and others’ home-brewed solutions legal, they will provide an outlet to obtain a doctor’s approval to use certain oils, and a way to acquire them from state-regulated sources.
“This past February, both the house and state senate overwhelmingly passed bills to expand the use of medical marijuana in Virginia,” says Jenn Michelle Pedini, executive director for the Virginia chapter of the National Organization for the Reform of Marijuana Laws (NORML).
Pedini and her agency worked closely with legislators to create the bills and will also play a consulting role in their implementation.
The bills, known as HB 1251, and SB 726, allow doctors to provide patients with certifications for the use of cannabis oils to treat any medical ailment. The move comes as the result of a deluge of scientific studies indicating the oils’ efficacy at reducing nausea, helping fight opioid addiction, alleviating pain, and, yes, even slowing the growth of, or killing certain types of cancer cells.
“I finally decided that I needed to advocate for the physicians being the decision makers,” says Senator Siobhan Dunnavant (R-Henrico), the chief patron of the senate bill, and a medical doctor. “We, physicians, are the ones that follow the literature and know which treatments are best for different conditions. The literature on medical cannabis is going to be evolving rapidly now, and because of this, it is not a decision that should be in the hands of the legislature. Instead, it should be with physicians.”
The bills come as an outgrowth of a 2015 statute allowing Virginians to use cannabis oils to treat a condition known as “intractable epilepsy.” However, the old law did not allow patients to secure a doctor’s permission to use the oils or a provision for them to be produced within the state. Hence, patients like Charles were left to purchase cannabis oil online, on the black market, or to learn how to make it at home.
Del. Eileen Filler-Corn (D-Fairfax), one of the bill’s chief co-patrons, says she became a supporter of decriminalizing medical marijuana four years ago, when she was approached by a family in her district whose daughter was plagued by seizures. Frustrated by the slow pace of change in the state, the family said they’d been forced to temporarily relocate to Colorado to obtain access to legal cannabis. Then Filler-Corn says she watched the child of another family seeking relief from medical cannabis suffer a seizure while attending a hearing on one of the bills. Both instances were heartbreaking.
“Passing these bills is a huge, huge deal, especially for people with epilepsy, multiple sclerosis, Crohn’s disease or cancer,” she explains. “Things happen very slowly in the legislature, and this was an educational process. It took time and education and a tremendous amount of energy and passion on the part of the families.”
Once implemented, the bills call for the creation of five vertically integrated dispensaries, one for each health region found within the state. According to Pedini, once a patient visits their doctor and receives a certificate of recommendation, he or she will be able to go to the pharmacy at one of the dispensaries and purchase the recommended product.
Lawmakers say that vertical integration makes the dispensaries easier to regulate. With development overseen by the Virginia Board of Pharmacy (VBP), they will feature greenhouses for growing marijuana, pharmaceutical grade processing labs and a pharmacy, all on the same site. As in other states, waste management, personnel and all processes will be strictly monitored by law enforcement.
The VBP is currently accepting requests for proposals from interested companies. Pedini says the proposals should be reviewed within the next few months and that the program and the dispensaries could be up and running as soon as the end of next year. In the meantime, a provision in the law provides patients with an affirmative defense against possessing the oils.
“The downfall of all this is, the bills don’t actually make it legal to possess cannabis oil,” says Nikki Narduzzi, patient coalition director at Cannabis Commonwealth. “What they do is allow patients to obtain a state-sanctioned certification saying they are using the oils under the advisement of a doctor. The idea is, the document will dissuade law enforcement from writing a citation because the charges will, in all likelihood, be dismissed.”
The language came as the result of lobbying by law enforcement agencies, district attorneys and Republican lawmakers fearing the wrath of the current presidential administration, which has chosen to take a hard stance against marijuana.
What it means, in human terms, is that people like Charles—and the parents of epileptic children—will still have to fear being arrested and treated like criminals by police officers.
“Of course, if they were to be arrested, it’s likely the charges would be dropped, assuming the patient can pay for an attorney,” says Narduzzi. “But I do think the affirmative defense condition is going to leave some citizens afraid to participate.”
Nonetheless, the shift in policy makes Virginia the latest in a long string of states seeking to decriminalize certain aspects of marijuana use. Currently, the District of Columbia and 29 states, including Maryland, have legalized most or all types of marijuana products for medicinal purposes. Nine states and the District have also legalized the drug for recreational use. According to polls conducted by the Pew Research Center in 2017, 61 percent of Americans support decriminalizing marijuana. In Virginia, that number was 62 percent.
Despite paramount public support for regulated full-scale decriminalization, Virginia legislators are pursuing a hyper-restrictive approach. In addition to the mixed message of an affirmative defense, the current legislation imposes an arbitrary limit of five percent THC content in the oils.
“The problem is, to shrink tumors, current medical literature says you need highly concentrated doses of THC,” says Pedini, herself a two-time cancer survivor.
In other words, for cannabis patients like Charles, while the bills are a step in the right direction, they still fall short.
Discussions about decriminalizing medical marijuana invariably lead to the subject of recreational use, which remains strictly illegal in Virginia. In fact, according to a recent Virginia State Crime Commission study, the commonwealth made 133,256 arrests in the past 10 years for simple marijuana possession alone. Taken collectively, the arrests cost taxpayers more than $700 million. Of those arrested, 80 percent were first-time offenders.
“Virginia arrests 10,000 people a year on simple possession charges that are unrelated to driving,” says Pedini. “So, these aren’t crimes that pose a public safety risk. This means that, in the past decade, almost $.75 billion has been diverted from more important causes—like solving violent crimes, or getting more teachers into our overcrowded classrooms. And that’s before you factor in the cost of incarceration.”
In Virginia, penalties for marijuana are steep. Classified as a Class I misdemeanor, a possession charge clings to records indefinitely and carries a fine of up to $500 and as much as 30 days in jail. A second or subsequent offense is punishable with up to 12 months in jail and/or a fine of $2,500. Get caught holding more than half an ounce of marijuana, and you’ve committed a felony and will face up to 10 years in jail—with a mandatory minimum sentence of one year—and a fine of $2,500.
Seeking to bring about some degree of change, in early 2018, Virginia lawmakers proposed to reduce simple possession from a misdemeanor offense to a civil penalty.
Brought by Senator Adam Ebbin (D-Alexandria), SB 111 came as a follow-up to a 2015 measure, which dropped the mandatory six-month suspension of an offender’s driver’s license for simple possession. The bill was backed by the ACLU, Virginia’s deputy secretary of public safety and homeland security, Jae K. Davenport, and governor Ralph Northam. It even gained early bipartisan support by way of Senate Majority Leader Tommy Norment (R-James City).
But opposition from the Virginia Association of Commonwealth’s Attorneys, and a last-minute flip-flop by Norment, ultimately led to the bill’s defeat.
Meanwhile, the senate courts committee passed SB 954, a measure allowing first-time offenders to pay a fee and have simple possession charges expunged from their record. Unfortunately, the bill mandates the creation of a database to keep track of those whose charges have been expunged. Creating the database would cost $187,132, not to mention the cost of maintaining it.
Norment says he pushed SB 954 when he realized SB 111 would not pass in the house, and was “trying to be pragmatic.”
Claire Guthrie Gastañaga, executive director of the Virginia ACLU, describes the move as a mistake, dismissing SB 954 as “the illusion of progress.” Her main criticisms of the bill are threefold.
First, a 2010 ACLU study showed black Virginians are three times more likely to be arrested for marijuana than whites, although usage rates are essentially the same. Second, fees associated with expungement will make it next to impossible for impoverished offenders to have the incident removed from their record. Third, implementing SB 954 will invariably “increase the cost [of law enforcement].”
“The problem is, until federal policies change, or we get a democratically controlled house of delegates, efforts to decriminalize the recreational use of cannabis in Virginia will likely continue to fail,” says Pedini.
Which is a shame because, beyond keeping non-violent Virginians out of the criminal justice system, the economic benefits of decriminalization are staggering. According to Forbes, in 2016, the national cannabis market was worth an estimated $7.2 billion and is projected to grow by a factor of more than 17 percent annually. In Colorado, which legalized recreational marijuana in 2012, retail cannabis sales topped $1 billion in 2016 and have boosted sales tax revenues by more than $200 million a year.
Then there are the jobs. The legal cannabis industry is projected to create around 250,000 jobs by 2020—that’s more than manufacturing and utilities combined.
Unfortunately, while Pedini says Virginia’s medical dispensaries will probably employ about 50 people each and have some positive economic impact, the windfall will be nowhere near that experienced by states that have authorized non-restrictive medical cannabis, and/or legalized recreational use.
Elsewhere in the commonwealth, another member of the cannabis family is generating serious public and legislative interest. Hoping to find a substitute for lost tobacco subsidies, a number of Virginia colleges have been studying industrial hemp as a potential agricultural cash crop.
“It’s a fast-growing, dual-purpose crop, and I think it has tremendous potential in the state,” says John Fike, an associate professor of soil and crop science who studies hemp for the Virginia Tech Agricultural Research and Extension Centers. “Its fiber is used in clothing, rope, construction materials, carpeting, in the automobile industry and more. Its seed oil has potential as an alternative energy source and as an ingredient in pharmaceuticals. It can also be used as cooking oil and in snacks.”
Hemp has a long history in Virginia. In colonial times, it was so vital, Jamestown farmers were required to grow it. Founding fathers like Thomas Jefferson glowingly celebrated its chameleonic utility. However, the plant hasn’t been cultivated commercially in the state for nearly a century.
Producing next to zero THC, hemp does not contain the psychoactive compounds that result in a so-called high. However, as cannabis prohibition took effect in the late 1930s, it was lumped in with marijuana. With the Controlled Substances Act of 1970 classifying the plant as a Schedule I drug, hemp was dealt its final blow. In the intervening 50 years, American farmers simply forgot how to grow it.
Virginia legislators took steps to change that in 2015. They approved the collegiate programs after the passage of 2014’s federal Agricultural Act, which said state departments of agriculture and institutes of higher education could cultivate industrial hemp for research purposes. In addition to Virginia Tech, Virginia State University, James Madison University and the University of Virginia are now working with farmers to relearn how to best grow hemp in the commonwealth. Additionally, they are developing channels and guidelines for how the crops can be marketed and put to use.
For Virginia farmers, this is big news. Although the plant has been illegal to grow since 1970, Americans have continued to import products made from hemp grown in Canada and overseas. According to a report by the Hemp Industries Association, in 2016, U.S. retail sales of these products totaled $688 million.
“More than 55,700 metric tons of hemp are produced around the world each year,” says Michael Renfroe, a professor of biology and hemp researcher at JMU. “In Virginia, we have the perfect growing conditions. It would make so much sense if we could produce this here. Industries would open up almost immediately … There’s an obvious market demand for this; we just need to be able to supply it.”
Seeking to amend federal laws and open doors for Virginia farmers, U.S. Congressman Bob Goodlatte sponsored the Industrial Hemp Farming Act of 2017. The bill has strong bipartisan support, including that of Mitch McConnell and Rand Paul. It is currently being reviewed by the Subcommittee on Crime, Terrorism, Homeland Security and Investigations. As of December, it had 39 co-sponsors, which Goodlatte says greatly increases its chances of passing.
“I’ve met many Virginia farmers who are ready to commercially produce and create a market for industrial hemp in the U.S., but outdated … federal restrictions on the cultivation and commercialization of this crop stand in the way,” explained Goodlatte in a recent statement.
By removing industrial hemp from the controlled substances list, he says the bill would give researchers like Fike and Renfroe the green light to help Virginia farmers start producing industrial hemp. This would give them access to an international market that is projected to grow to $1.8 billion by 2020.
It’s hard to say what the future of cannabis in Virginia will look like.
With a Republican controlled House of Delegates and U.S. Attorney General Jeff Sessions vowing to crack down on marijuana, the immediate future looks unpromising.
But what about three, five years from now?
“I think there are huge changes waiting just around the bend,” says Pedini. “Public opinion overwhelmingly favors decriminalizing cannabis. Medical literature continues to evolve. Evidence proves that nonrestrictive medical and recreational legalization is an economic boon, creates jobs and helps to fight opioid addiction by a factor of about 25 percent … so, we’re going to keep applying pressure. We’re going to keep educating. You’ll see us making advances, bit by bit.”
Pedini’s attitude reminds me of something Charles told me during my visit: “Rebellion in the face of tyrannical wrong-mindedness is what founded America.” And American cannabis supporters have been at this for a long, long time. If there’s one thing they’ve proven, it’s that they will stop at nothing less than total reform.
“Twenty years ago, if you’d said there was a chance Virginia would soon be legalizing any form of marijuana, you’d have been laughed out of town,” said Charles. “Now, it’s just a matter of time.”
While Pedini and just about everyone I interviewed for this story agree, unfortunately, in Charles’s case, he doesn’t have time to spare.