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Northam Ceremonially Signs the Virginia Values Act

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Joined by LGBTQ rights advocates from around Virginia, Governor Northam held a ceremonial signing of the Virginia Values Act last Thursday at Diversity Richmond.

Last Thursday, Governor Ralph Northam got together with LGBTQ advocates from all over Virginia to host a ceremonial signing of the Virginia Values Act. The event, which was streamed on Equality Virginia’s Facebook page but not open to the public, was an opportunity to commemorate the significant expansion of LGBTQ rights in Virginia in a proper socially-distanced fashion, and everyone involved was glad to take it.

The Virginia Values Act was passed by both houses of the General Assembly earlier this year, signed into law in April by Governor Northam, and went into effect at the beginning of July. The act forbids discrimination on the basis of sexual orientation and gender identity in a number of areas, including employment, housing, and public accomodations. For the first time, LGBTQ Virginians can live free of worry that they will be evicted, fired, or refused service in stores and restaurants.

In light of such a groundbreaking expansion of LGBTQ rights within the state, LGBTQ advocates wanted to commemorate the Virginia Values Act’s passage in a more formal setting that hadn’t been possible in April, at the height of the pandemic. The gathering last Thursday at Diversity Richmond provided the perfect opportunity. Virginia Values Coalition director James Parrish, Equality Virginia executive director Vee Lamneck, local advocates Zakia McKensey and Aurora Higgs, and other LGBTQ Virginians were joined at the event by public officials including Governor Northam, Virginia First Lady Pam Northam, Attorney General Mark Herring, and Virginia state Senator Adam Ebbin.

Governor Northam called the ceremonial signing “an exciting day for Virginia.” Referencing the years of effort that went into crafting and passing the Virginia Values Act, he said, “It has been a team effort and together, together we have all come a long way.”

Watch the full signing ceremony, as streamed on Facebook Live, below.

Photo via Governor Northam’s office

Attorneys General Want Restrictions Eased For Gay Men Donating Blood

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Virginia Attorney General Mark Herring joined 19 other state Attorneys General in asking the US Department Of Health to ease restrictions on LGBTQ blood donation.

Discriminatory policies dating back to the early days of the AIDS crisis continue to place restrictions on the ability of gay men and other LGBTQ people to donate blood. At the time of a massive worldwide health crisis, this policy seems even more wrongheaded than usual, and last week Virginia Attorney General Mark Herring joined with 19 other state Attorneys General from around the US in signing onto a letter condemning the policy.

The letter was sent to the US Department of Heath And Human Services, in hopes that the department would replace a discriminatory policy based on identity with one based on risky behavior. It was drafted in response to a request for public comment on the Pandemic and All-Hazards Preparedness and Advancing Innovation Act, and was signed by 20 Attorneys General, including those from California, New York, Illinois, and Washington DC, all of whom are Democrats.

“The discriminatory restrictions against blood donations by healthy gay and bisexual Americans have persisted for far too long,” the letter states. Indeed, restrictions against donations by MSMs — men who have sex with men (a category that has at times been defined as including all transgender people, regardless of their gender identity or sexual orientation) — date back to 1983, when a lifetime ban on blood donations from MSMs was established in response to the AIDS crisis and a number of high profile cases in which children were diagnosed with AIDS after receiving blood transfusions.

In 2015, the ban was eased, and the FDA established a waiting period of 12 months, meaning that MSMs could now donate blood if it had been at least a year since they last had sex with another man. Earlier this month, the Food And Drug Administration lowered that waiting period to three months. However, the Attorneys General still feel that this change is insufficient to address the discriminatory nature of the US policy around LGBTQ blood donation.

“While this reform takes a step toward increasing blood donations made by healthy bisexual and gay men in a time when the nation’s supply of blood and blood products is at risk of collapse due to the COVID-19 pandemic, it does not go far enough,” the letter states, in reference to the lowering of the waiting period to three months. “The steps you have taken acknowledge current rules are informed more strongly by bias than science.”

Virginia Attorney General Mark Herring

Citing a 2014 study by the Williams Institute, the letter states that “lifting the blood donation ban for MSM completely, as compared to a twelve month ‘deferral period’ from last MSM sexual contact, would produce over 2 million additional each eligible blood donors, including nearly 175,000 likely blood donors, and would produce nearly 300,000 pints of additional donated blood annually.”

The letter goes on to mention that the current policy excludes monogamous married couples from donation, even in cases where one partner would be donating blood to the other. “The survival of such a union — the survival of its members — should not depend on the manner in which they consummate their love,” the letter states. “The FDA should immediately clarify that the new three month MSM deferral period announced does not bar MSM from donating convalescent plasma to their loved ones.”

The letter also mentions Constitutional provisions for equal protection under law, and states that the current blood donation policy may violate both the Fifth and Fourteenth Amendments. Ultimately, it condemns the current policy as intrinsically discriminatory. “Any sex-based deferral period targets MSM for a perceived and faulty belief that all MSM engaged in risky behavior that could put blood donations at risk,” the letter states. It calls for the FDA to “look at risk behavior and not sex for determining who should donate blood,” and to “replace a time-based deferral with a risk-based framework.”

“Our country’s blood supply is dangerously low right now during a public health crisis when it is more critical than ever,” Attorney General Herring said in a statement. “Easing these restrictions will not only help boost the national blood supply but it will also begin the long overdue process of changing this outdated policy towards non-gender-based risk assessment restrictions on blood donations.”

Top Photo by LuAnn Hunt on Unsplash

Democratic Lawmakers Reflect on Historic General Assembly Session

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In the first session in over two decades with the governor’s office and both houses under Democratic control, the General Assembly passed extensive legislation affecting everything from LGBTQ rights to gun control and marijuana decriminalization.

Virginia lawmakers passed over 1,200 new laws in two months, a variety of them in the final days of the 2020 session, which expanded into Sunday evening to accommodate the backlog of legislation.

This session has been the first time since 1994 that the Democrats have controlled both chambers of the General Assembly along with the governor’s office. The House passed 746 of 1,732 bills introduced, while the Senate passed 543 of 1,096 bills introduced, excluding resolutions, according to the Legislative Information System. The number of bills sponsored in the House led to long sessions in both chambers and left the Senate grappling with an approaching deadline. 

In eight weeks, starting with a vote to ratify the Equal Rights Amendment, Democrats worked to overturn close to 30 years of Republican dominance over issues such as gun control, reproductive rights, and voter rights.

They also passed new measures such as empowering localities with the authority to remove or contextualize war memorials and adding LGBTQ protections from discrimination in housing and employment, as well as a ban on conversion therapy for minors, becoming the first Southern state to pass such legisation. 

Seven out of eight major gun control measures supported by Gov. Ralph Northam are on the way to the governor’s desk for his signature. The legislation includes bills that limit handgun purchases to one per month, a background check on all firearms sales, and extreme risk protection orders, also known as the red flag law. 

House of Delegates begins on Sunday March 8, 2020 after lawmakers agreed to an extension of the session the night before. (Photo by Chip Lauterbach/Capital News Service)

Other legislation that passed in the homestretch included decriminalization of marijuana, but efforts to legalize marijuana were squashed, to the dismay of advocates. The decriminalization bill does away with the criminal penalty for simple marijuana possession, instead instating a $25 civil penalty for a person caught with not more than 1 ounce of marijuana. The Senate amended the bill from the original amount of not more than a half ounce.

“For far too long our approach to cannabis has needlessly saddled Virginians, especially African Americans and people of color, with criminal records,” Attorney General Mark Herring said in a statement. “Those days are over.” 

Herring, who pushed for the legislation, said there were 29,000 marijuana possession arrests in 2018. He also said decriminalization is an important first step toward legal, regulated adult use. 

Lawmakers reached a compromise to increase the minimum wage, with a bill that gradually increases the wage to $9.50 in 2021, $11 in 2022 and up to $12 in 2023. Following these raises, the measure is to be brought before the General Assembly for a future vote that must pass by 2024 in order to guarantee that the wage can reach $15 by 2026.

Democrats also pushed through an amended bill that allows access to collective bargaining for public employees — such as teachers and firefighters — in localities where local governments choose to participate. Sens. Bill DeSteph, R-Virginia Beach, and Amanda Chase, R-Chesterfield, criticized these policies, which they said create hurdles for enterprises. 

“We’ve just crushed the small business atmosphere,” DeSteph said in a video posted on Facebook. “CNBC had us as the No. 1 place to do business. We’re going to be in the 20s after this. It’s a very sad day for the commonwealth.” 

Freshman Sen. Ghazala Hashmi, D-Richmond, who defeated one-term incumbent Glen Sturtevant in November, reflected back on her first session.

“It’s been incredible, I have immersed myself in all the issues and critical pieces of legislation that we have had,” Hashmi said. “We have been able to pass some very important bills this year, for immigrant rights and for education, focusing on teachers and higher education, I’ve really enjoyed the work and am looking forward to coming back next year.”

In the House, Democrats held 55 seats to the Republican’s 45 seats. Democrats ushered changes that Del. Lee Carter, D-Manassas, felt will be instrumental in improving the lives of Virginians.

“With the partisan change in both chambers, the question coming down here was: ‘What kind of majority are we going to be?’” Carter said. “Whether we were going to be the type of majority that stood unequivocally for working people, against corporate interests, and decided to make lives better for the people that desperately needed it, or if we were going to be a majority that was content to merely not be as bad as the Republicans.”

Carter said that he was happiest with the outcome of his bill that capped the price of insulin at $50 for a month’s worth.

“I introduced the bill with the cap at $30, the Senate put it at $50,” Carter said. “I’m hoping that the governor will put it back down to $30 or even lower, so we can get some relief to those people who have health insurance but their deductibles and copays are too high for them to be able to afford their insulin products.”

Senators entering chambers waiting for Saturday’s session to begin. (Photo by Chip Lauterbach/Capital News Service)

Del. Danica Roem, D-Prince William, looked back on her third session in the General Assembly with pride, joking that she was able to pass 13 bills for the 13th District. Roem was pleased that her bill, HB 1024, which would establish a statewide cold case database, passed the Senate on the final day of this year’s session.

“This will allow reporters, as well the public in general, to look up every missing persons case, unidentified persons case, and every unsolved homicide in the state that is at least five years old,” Roem said. “This is a huge win for government accountability and transparency.”

Some legislation that moved through the House met resistance in the Democrat-majority Senate, where moderate Democrats sided with Republicans. Three moderate Democrats tipped a Senate panel vote to continue HB 961, the assault weapons ban sponsored by Del. Mark Levine (D-Alexandria), until the next session. 

On Saturday, citing concerns of minority profiling, Senate Democrats helped vote down HB 1439, which would have made not wearing a seatbelt in any seat of a vehicle a primary offense. 

Some Republicans also advanced legislative reform. Sen. Bill Stanley, R-Franklin, passed a measure that will remove suspension of a driver’s license for nonpayment of fines. Stanley also supported a bill granting tenants the power to make repairs on their property and deduct the costs from their rent, with conditions.

Speaker of the House Eileen Filler-Corn issued a statement saying that Democrats were celebrating a “historic, legislative session.”

“This General Assembly session has been historic in the extraordinary progress the House of Delegates has made for Virginians in every corner of the Commonwealth,” Filler-Corn said. “In November, voters called for swift, impactful action to make their communities safer and more prosperous. We have delivered on that mandate.” 

Multiple House and Senate Republicans did not respond to a request for comment. 

Written by Chip Lauterbach, Capital News Service. Top Photo by Chip Lauterbach, Capital News Service.

Marijuana Reform Advocates Divided Between Decriminalization And Legalization

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Advocates may not agree about whether decriminalization or outright legalization is the correct path for Virginia marijuana legislation. But they’re united in the belief that the state’s current laws must change.

Advocates dressed in black stood Wednesday at the base of the Virginia Civil Rights Memorial to voice their support of marijuana legalization, repeating a variation of “the time is now” in each of their statements. 

Participants dressed in black “in order to stand in solidarity with the black and brown bodies that have been criminalized for decades here in the commonwealth,” said Chelsea Higgs Wise, co-founder of Marijuana Justice, a Virginia-based nonprofit organization that aims to educate people on the history of cannabis criminalization in the U.S. 

The American Civil Liberties Union of Virginia, along with Marijuana Justice and RISE for Youth, a campaign committed to promoting alternatives to youth incarceration, held a press conference promoting House Bill 1507, patroned by Del. Jennifer Carroll Foy, D-Prince William. 

“Lean on your legislators and make sure that they understand the effort to legalize marijuana is here and we’re bringing it to your front door, because now is the time to fully have criminal justice reform in a meaningful way,” Carroll Foy said. 

Del. Joshua Cole addresses the press about the racial effects of marijuana prohibition. Photo by Emma Gauthier

The bill wants to exclude marijuana from a list of controlled substances that are illegal to possess. Under current law, less than half an ounce of marijuana is considered a class one misdemeanor.

A “first offender’s rule” is offered on first convictions in lieu of class one misdemeanor penalties. The rule includes probation, drug testing and community service. Subsequent convictions are punishable by up to one year in jail and a maximum fine of $2,500.

Possession of more than half an ounce of marijuana is by law considered an intent to distribute and is charged as a felony, punishable by one to 10 years in prison. 

Capital News Service reported that in 2018, the only offenses more common than marijuana possession were traffic-related, such as speeding or reckless driving. Marijuana arrests that year were at their highest level in at least 20 years, with nearly 29,000 arrests. 

“Arrests for marijuana possession are significantly higher for blacks and people of color, even though data has shown that there is no higher rate usage with people of color than there are with white people,” said Del. Joshua Cole, D-Stafford, chief co-patron of HB 1507. “But yet we are constantly the ones that are taking the brunt of this.” 

Virginia State Police arrested more white people (25,306) for drug violations in 2018 than African Americans (20,712). While African Americans make up 19 percent of Virginia’s population, they consisted of nearly half of all marijuana convictions in 2018, according to a Capital News Service analysis of court records. Carroll Foy said that African Americans are three times more likely than any other race to be stopped, arrested and convicted for possession of marijuana. 

Nine other bills have been introduced this session relating to the possession of marijuana. Some propose legalization, while others propose decriminalization. Although the terms are used interchangeably at times, the two carry dramatically different meanings. 

Bills similar to HB 1507, like HB 87 and HB 269, propose the legalization of marijuana, which would lift existing laws that prohibit possession of the substance. 

Senate Bill 2, patroned by Sen. Adam Ebbin, D-Alexandria, HB 972, patroned by Del. Charniele Herring, D-Alexandria, and several other bills propose the decriminalization of marijuana. These bills would impose a $50 fee for consuming or possessing marijuna. Ebbin’s bill would raise the threshold amount of marijuana subject to distribution or possession with intent to distribute from one-half ounce to one ounce. Herring’s bill would impose a $250 fee if the offender was consuming marijuana in public. However, the drug would remain illegal.

Advocates at the press conference support the legalization of marijuana in the commonwealth. Photo by Emma Gauthier

The ACLU said last week at a press conference that decriminalization and civil offenses still hold and create a number of issues — someone who wants to contest the citation would have to do so without a lawyer, and those who cannot afford to pay upfront would have to go to court, which usually includes more costs and fees. The group instead wants to see a full repeal of the prohibition on marijuana.

Virginia Attorney General Mark Herring took part in a cannabis conference Sunday and voiced his support for marijuana reform. 

“It’s clear time for cannabis reform has come,” Herring said. “Justice demands it, Virginians are demanding it, and I’m going to make sure we get it done.”

Ashna Khanna, legislative director of the ACLU of Virginia, said they have confirmed Herring’s support of HB 1507. The organization, along with 11 others, sent a letter to Gov. Ralph Northam requesting support of legislation to legalize marijuana, and hope that he will be open to meeting with them soon.

Written by Emma Gauthier, Capital News Service. Top Photo: Del. Jennifer Carroll Foy expresses the urgency of HB 1507. Photo by Emma Gauthier.

Virginia Prosecuted Over 46,000 Marijuana Cases in 2018

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In 2018, almost 20,000 people, most of them African American, were found guilty of marijuana possession in Virginia courts. The racial disparities where the state’s marijuana convictions are concerned has led some state officials to consider decriminalizing and perhaps legalizing marijuana.

Now that Democrats have won control of the General Assembly, decriminalization of marijuana could pass in the legislative session that begins in January. This would mean reducing the penalty for possession of small amounts of marijuana from a criminal offense to a civil violation, like a traffic ticket.

Such a change in the law would have a sweeping effect throughout Virginia: Last year, more than 46,000 marijuana possession cases were prosecuted in the state — and almost 20,000 people, most of them African Americans, were found guilty, leaving them with a criminal record. Although the crime is only a misdemeanor, a conviction still can hurt job prospects and other opportunities.

“If I get this on my record, I have to tell people what happened,” said CJ, a Richmond resident who asked to remain anonymous because he once had been caught smoking marijuana. “Most places aren’t too fond of that, and I might miss out on some opportunities because of a little bit of weed.”

CJ had a run-in with the law over a small amount of marijuana while he was in high school. He had been smoking a joint on the roof of a building in Alexandria with two friends and his cousin. After they climbed down, two police officers confronted the group.

“My biggest fear was going to jail and having to explain what happened to my mom,” CJ said.

After some back and forth, the officers let the young men off with a warning: If they were caught again on the streets, they would be charged.

“For what?” asked CJ.

“Doesn’t matter,” one of the officers replied before demanding that CJ and his companions get out of his sight.

They got off lucky, but that hasn’t been the case for most people caught with marijuana in Virginia.

20,000 convictions for marijuana possession last year

Capital News Service examined a database of more than 2 million cases processed in General District Courts across Virginia in 2018. Marijuana possession cases numbered more than 46,000. The only offenses more common than marijuana possession were traffic-related, such as speeding, reckless driving, and driving without a license.

Of the marijuana cases, more than 31,000 had been filed in 2018; the others had been filed in previous years.

About 35,000 of the cases before the General District Courts last year ended with a final disposition. In approximately 20,000 cases, the defendant was found guilty; in about 14,900 cases, the defendant was found not guilty or prosecutors dropped the charges.

Besides underscoring the prevalence of marijuana prosecutions, the data also sheds light on another factor often cited by critics of marijuana laws: the disproportionate impact on African Americans.

African Americans make up 19 percent of Virginia’s population, according to the U.S. Census Bureau. But they represented 49 percent of all marijuana possession prosecutions — and 51 percent of all defendants found guilty. More than 1,400 of every 100,000 black Virginians faced marijuana charges in General District Court last year.

In contrast, non-Hispanics whites make up 61 percent of Virginia’s population. But they represented 48 percent of all marijuana possession prosecutions — and 45 percent of all defendants found guilty. About 425 of every 100,000 white Virginians faced marijuana charges in General District Court last year.

Surveys have shown that similar proportions of whites and blacks use marijuana. The racial disparity is one reason why Virginia Attorney General Mark Herring convened a “Cannabis Summit” on December 11 to discuss decriminalizing possession of marijuana and legalizing it for recreational use.

“The burden of this system is falling disproportionately on African Americans and people of color,” Herring said. “There is a better and smarter approach to cannabis, and I think the time has come that we can embrace that.”

In recent months, Herring has stepped up his arguments calling for the decriminalization of possession of small amounts of marijuana, action to address past convictions for simple possession, and legalization and regulation of adult use of marijuana in Virginia.

The attorney general noted that in 2018, marijuana arrests in Virginia totaled almost 29,000 — their highest level in at least 20 years. That was triple the number of marijuana arrests in 1999. More than half of those arrested last year were under age 24.

Virginia spends more than $81 million annually enforcing marijuana laws, Herring said.

“Virginia’s policy of criminalizing minor marijuana possession is not working,” Herring said in an op-ed.

“It is needlessly creating criminals and burdening Virginians with convictions. The human and social costs are enormous, in addition to the millions of dollars it costs Virginia taxpayers. And the negative consequences of the current approach fall disproportionately on African Americans and people of color.”

Under current Virginia law, any person knowingly or intentionally possessing marijuana — unless the substance was obtained with a doctor’s recommendation — is guilty of a misdemeanor and can be fined up to $500 and confined in jail for up to 30 days.

In addition to the fines and jail time, people found guilty of possession of marijuana may face challenges such as finding employment, being approved for rental applications, and being accepted to college, even years after a conviction.

Democrats and many Republicans believe the law should be reformed. In preparation for the 2020 legislative session, two lawmakers, both Democrats, have filed bills regarding the issue:

  • Sen. Adam Ebbin of Alexandria is sponsoring legislation to decriminalize simple marijuana possession and provide a process for expunging convictions. Under his bill, people caught with less than an ounce of marijuana would face a civil penalty of no more than $50.
  • Del. Lee Carter of Prince William County has proposed legalizing marijuana, allowing people 21 and older in Virginia to buy the substance in state-regulated stores. His bill would decriminalize marijuana possession for those under 21.

Gov. Ralph Northam, a fellow Democrat, supports marijuana decriminalization and access to medical marijuana, but he hasn’t called for legalization.

Even some law enforcement officers believe the marijuana laws should be reformed. Capt. Emmett Williams of the Richmond Police Department called the current penalties “a little harsh.”

“I think the legislature is trying to make it so they can get those charges dropped easier. Virginia itself is harsher than most states when it comes to that. I don’t think something like a simple possession charge should affect someone for so long,” Williams said.

Del. Lee Carter. Photo via VCU-CNS

However, many people oppose legalizing marijuana because they fear it will encourage more Virginians, especially young adults, to use the drug.

In addition, “it’s a substance that is associated with a lot of violence,” Williams said. Gangs are often involved in the trafficking of marijuana and other drugs, selling the substances on the street and fighting over territory and money.

Williams also said officials should not get their hopes up that marijuana legalization would boost Virginia’s economy and provide a tax windfall for the state.

“Even if marijuana became legalized in Virginia, the distributors wouldn’t be able to get tax breaks for owning a business because they can’t use banking institutions since it’s still illegal on a federal level,” Williams said.

Written by Eric Everington and Adam Hamza, Capital News Service. Graphics by Adam Hamza of VCU Capital News Service, based on analysis of General District Court data. Top Photo by Dylan Fout on Unsplash.

Virginia’s Legal Landscape Shifts As Support For Cannabis Grows

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With cannabis decriminalization, cultivation, and legalization at the forefront of political conversations in Virginia, farmers and legislators are grappling with a changing legal and cultural landscape.

“We do grams, eighths, quarters, half ounces, pounds, wholesale pounds — however you want it,” Jacob Stretch said, standing between crates of dried hemp in his living room that doubles as his hemp processing and drying facility. Stretch, owner of Chesapeake Blue, just finished his first season growing industrial hemp as a registered grower and processor on his family’s farm.

Industrial hemp is poised to be a fast growing sector of agriculture in Virginia. Hemp advocacy group Vote Hemp estimates 2017 retail sales of hemp products neared $820 million nationally and will continue to grow. 

Hemp is a versatile material that can be used in foods and beverages, personal care products, nutritional supplements, fabrics and textiles, paper, construction materials and other manufactured goods, according to a report from the Congressional Research Service.

In an October press release, Gov. Ralph Northam announced Virginia’s first commercial industrial hemp fiber processing facility. Appalachian Biomass Processing, in Wytheville, will create 13 new jobs and purchase more than 6,000 tons of Virginia-grown industrial hemp over the next three years, at a value of more than $1 million, the governor stated.

“I am committed to pursuing every path that will attract economic prosperity to our rural communities, and hemp production opens up a wealth of opportunity to bring new jobs and new business to Virginia,” Northam wrote.

The processor will mainly create hemp hurd, a woody fiber extracted from the plant stalk to be used for animal bedding. Hurd can also be used to make industrial items such as hemp-based concrete and hemp-derived plastics.

In 2018, when hemp could only be grown for research purposes in Virginia, there were 135 acres of hemp planted and about 85 registered growers, according to Erin Williams, senior policy analyst with the Virginia Department of Agriculture and Consumer Services. As of Nov. 15, VDACS had registered 1,183 industrial hemp growers, 262 processors and 117 dealers, Williams said. Nearly 2,200 acres of hemp were planted in Virginia this year. The economic impact of industrial hemp in the state has yet to be determined, Williams said. The harvest season has just finished and crops are being sold to processors. 

“So we should know soon what this past growing season’s impact will be,” Williams said. “We’re going to conduct a grower survey towards the end of the year and hopefully have some data at the beginning of next year.”

When the 2018 federal Farm Bill went into effect, industrial hemp was listed as an agricultural commodity and removed as a controlled substance under the Controlled Substances Act. It is now placed under United States Department of Agriculture regulation. The bill also allowed state agriculture departments to submit plans for the regulation of hemp cultivation to the USDA. 

Jacob Stretch showing his industrial hemp leaves in storage after being dried. Field Station Farm. Friday, Nov. 22, 2019. (CNS photo by Morgan Edwards)

VDACS expects to submit its state hemp production plan to the USDA before the end of the year, according to its website. It is likely there will not be major issues with the plan, according to Tyson Daniel, a trial lawyer and founder of Virginia Hemp Lawyers, a law firm specializing in the hemp and cannabis business.

On the VDACS website, there is a list of applications and guidelines for the industrial hemp grower registration, industrial hemp processor registration, and industrial hemp dealer registration. Each registration costs $50 annually, and one person can have all three registrations.

“It will be interesting to see if it stays at that rate,” Daniel said. “Compared to some other states, it is a very reasonable rate.”

An industrial hemp grower registration in Maryland costs $250. In North Carolina there is a $250 initial fee with an annual fee of $250 for less than 50 acres or $500 for more than 50 acres. Additionally, growers must pay $2 per acre of hemp or $2 per 1,000 square feet in a greenhouse of hemp.

Stretch, who is also a registered processor, said he was approved for his grower registration in around 40 days. Jacob Williamson, owner of Hens and Hemp, said he is registered as a grower and is on his way to becoming a registered processor. Williamson said having both permits is worthwhile because of their low cost and the extra level of protection it provides — since growing and then drying, trimming, and packing hemp could be considered processing. Williamson, like many other small farmers, mainly grows hemp to be sold as CBD products. 

Jacob Stretch smoking his CBD flower. Friday, Nov. 22, 2019. (CNS photo by Morgan Edwards)

Defining the difference between hemp, marijuana, and CBD

In its infancy, the Virginia hemp industry is not without issues — namely in defining the difference between legal industrial hemp and illegal marijuana. There is also general confusion surrounding hemp and hemp products derived from the cannabis plant, namely CBD. CBD is considered non-intoxicating and touted to have multiple medical benefits. It is sold in a variety of ingestible and topical products, and also in flower form that looks identical to marijuana. 

Daniel explained the distinction between legal cannabis derived products and marijuana.

“If you are going to draw a diagram, put cannabis at the top, hemp on one side, marijuana on the other,” Daniel said. “They are both the cannabis plant, it’s just the level of Delta-9 that is different.” Delta-9 is the THC molecule associated with intoxication or “getting high.” It is commonly referred to as THC instead of Delta-9 THC.

The non psychoactive version of THC is THC-A; it does not produce a high. The molecule is considered the precursor to THC, and once heat is applied THC-A is converted into THC, say through the use of a vaporizer. 

The combined amount of THC-A and THC present in hemp is referred to as total, whole, or max THC.

Legally, when hemp reaches a THC concentration of more than 0.3 percent on a dry weight basis, it is classified as marijuana. According to the VDACS industrial hemp registration guide, anything grown above the 0.3 percent limit will be destroyed, in accordance with Virginia code.

Growers contest how the hemp is tested to determine that 0.3 percent, and its validity as an indicator of whether or not hemp has crossed into being marijuana. Daniel said the biggest issue right now has to do with testing; whether it is strictly THC or combined THC and THC-A.

The mother cannabis plant Jacob Williamson got his industrial hemp clones from during his first growing season. Hens and Hemp. Wednesday, Nov. 27, 2019. (CNS Photo by Morgan Edwards)

Williamson said one passage of the USDA guidelines sounds like it’s talking about THC, and another passage says whole THC, which would include both.

“That’s why everyone freaked out about the USDA guidelines,” he said. “All the sudden it was total THC that was 0.3 percent.”

CEO and founder of East Coast Cannalytics Rebecca Hobden said the VDACS testing method for appropriate levels is to heat up the hemp. It then goes through a heating process which converts THC-A into THC. So if a crop has combined THC-A and THC, the testing process will increase the actual THC, potentially raising it over the acceptable levels allowed.

Williamson harvested his hemp plants at 13 percent CBD and 0.1 percent THC. “I probably pulled them a little early because I was nervous, but that’s fine — 13 percent is plenty,” he said. 

Hobden explained that as THC levels increase in a plant, CBD levels increase. She said farmers will try to get as close to the allowed 0.3 percent THC limit as they can to raise CBD levels. Hobden said hemp with CBD levels closer to 20 percent is more desirable for farmers, as it has a higher market value. 

Stretch said the 0.3 percent limit is arbitrary and could be a colossal loss for farmers.

“The number 0.3 percent was put on there by who, you know? Who decided 0.3 percent was the right number?”

“I’ve heard more experienced growers talk about how it can creep up in the flower period, and then at a certain point, it will go back down,” Stretch said. “So if you harvested at the wrong time, you run a higher risk of being hot.” 

Jacob Williamson showing the mother cannabis plant he got his industrial hemp clones from during his first growing season. Hens and Hemp. Wednesday, Nov. 27, 2019. (CNS Photo by Morgan Edwards)

The limit needs to be raised from 0.3 percent, according to Rebecca Caffrey, founder and chief scientific officer of Delta-9 Scientific, a cannabis testing lab based outside of Richmond.

“There’s no functional difference between something that’s 0.3 percent THC and something that’s 1 percent THC,” she said. “Neither one of them is going to get you high, no matter how hard you try.”

Caffrey said she has tested thousands of hemp samples for “honest” farmers. “They are spending beaucoup money on hemp seeds and hemp clones, and you know, then it comes back and it’s like 0.57 percent [THC],” she said. Caffrey believes farmers should not be penalized for that.

Williamson said he didn’t think VDACS tested many hemp farmers to see if their hemp was “hot,” meaning above the 0.3 percent limit.

“I guess they originally wrote the law because they thought people were going to pretend to grow hemp and then grow real bud … I thought there would be more of that, but I don’t see anybody doing that,” he said. 

VDACS used random testing to track THC levels. Hobden and Caffrey believe VDACS did not test many farmers. 

“I was in a meeting of probably about 40 farmers and asked how many people actually got tested, and one person raised their hand,” Hobden said. 

Jacob Williamson’ hens and the source of his compost. Hens and Hemp. Wednesday, Nov. 27, 2019. (CNS Photo by Morgan Edwards)

Hemp and CBD products in the marketplace

The General Assembly this year approved a bill that allows CBD and THC oil with up to 10 milligrams of THC to be legally sold, with a doctor’s recommendation, through an approved state pharmacy. THC above 0.3 percent is federally illegal and CBD of any level is legal. 

However, the Food and Drug Administration does not allow CBD to be marketed as a dietary supplement, or to be advertised as having medical benefits. The FDA has only approved one CBD product, for epilepsy. The agency recently issued a consumer update, noting that “there are many unanswered questions about the science, safety, and quality of products containing CBD.”

Mike Betts, owner of the online hemp and CBD store Red Beard Alternatives, believes CBD offers relief from anxiety, depression, and symptoms of post-traumatic stress disorder.

Betts is a retired Marine Corps veteran who for years battled to treat physical and mental wounds sustained while serving. Betts said he turned to hemp and CBD after finding no relief in prescribed medications and self-medicating. He uses hemp products and grows his own hemp plants as a form of therapy in itself. He said nurturing them from a tiny seed has given him something to look forward to, and it is something he wants to share with fellow veterans.

Rebecca Caffrey demonstrating the “espresso” like consistency she gets industrial hemp to before testing. Delta9 Scientific. Tuesday, Nov. 26, 2019. (CNS photo by Morgan Edwards)

 He said the purpose of Red Beard Alternatives is to provide veterans access to alternative forms of therapy; the proceeds from his online market help fund alternative therapies for veterans. 

“Whether we give them a greenhouse or a gym membership… in order to fund that mission, we’ve created an online farmers market where other hemp farmers can showcase their products and sell them to consumers,” Betts said.

However, he said is not allowed to advertise his products due to legal restrictions and a wariness from various social media sites in advertising products that closely resemble marijuana. He said many consumers are unfamiliar with hemp, and often confuse it with marijuana. Betts sees the next step in expanding his business centered on product education.

Alongside growers Williamson and Stretch, Betts hopes to see more defined regulations and loosened restrictions for growing and selling hemp and CBD products. Daniel said the easiest and fastest way for this to be accomplished would be through legislation in the General Assembly. 

Rebecca Caffrey holding an industrial hemp sample in the middle of the testing process. Delta9 Scientific. Tuesday, Nov. 26, 2019. (CNS photo by Morgan Edwards)

Legal landscape rapidly shifting as cannabis support grows 

Del. Steve Heretick, D-Portsmouth, said he has encountered a groundswell of support for changing state law.

“Over 80 percent of all Virginians, regardless of political stripe, advocate or support the decriminalization of simple possession,” Heretick said. “You can’t get 80 percent of the people in Virginia to agree on anything, but they agree on that much.”

The statistic Heretick quoted refers to a September University of Mary Washington study. The poll noted that 80 percent of Virginians 25 and under support legalization, not all Virginians. However, 61 percent of all Virginians are in favor of legalization, according to the poll.

Heretick said he plans to form a “cannabis caucus” — the second state caucus of its kind in the country — “to put all of the stakeholders at the same table.” He believes the caucus will foster productive conversations on how to move the hemp industry forward and how to eventually legalize adult marijuana use in the state.

“I think in creating the cannabis caucus, we’re trying to create an organization that we can invite all the stakeholders to participate in,” Heretick said. “Not only members of the legislature, but members of the farming community, the community that would do distribution advertising and dispensing.”

A variety of industrial hemp samples in the middle of the testing process. Delta9 Scientific. Tuesday, Nov. 26, 2019. (CNS photo by Morgan Edwards)

Heretick sees decriminalization of simple possession as the first step on the journey to legalization and is confident that the General Assembly will pass Senate Bill 2 or a similar bill on the issue in 2020. SB2 specifically calls for the decriminalization of simple possession of marijuana, turning the offense into a civil penalty with a fine of no more than $50 attached. Heretick said he and his colleagues want to make sure that legalization in Virginia is thoughtfully enacted.

“I really don’t think that legislatively we’re doing anybody any favors by legalizing marijuana and then having nothing in place to do that effectively,” Heretick said. “We’re trying to avoid the obvious problems that have plagued other states that have beat us to the punch in terms of legalization.”

Daniel explained the differences between decriminalization and full legalization. He said the short answer is that decriminalization means it is no longer being prosecuted.

What separates decriminalization from legalization is that legalization provides a mechanism for marijuana to be brought to market, according to Daniel. “But we haven’t set up a mechanism for it to go to retail sale,” Daniel said. Regardless, he believes people would work around this.

The gifting system in Washington D.C. is an example of creative solutions when marijuana is legalized, but no system is established to regulate the buying and selling of it. People can purchase a shirt, sticker, or even cookies, all of which come with a free gift of marijuana. 

“This is a civics lesson,” Daniel said. “We don’t need permission in our country to do something. We act under the premise that unless it’s prohibited specifically by law, then we can do what we want to do.”

A display of the products sold on the Richmond based online farmers market, Red Beard Alternatives. Sunday, Dec. 1, 2019. (CNS Photo by Morgan Edwards)

Hemp Becoming Less of a Partisan Issue

“I don’t think that it’s so much a partisan issue,” Daniel said. “Frankly, I think both sides of the aisle see it as an enormous revenue producer and a gigantic cost saver, in terms of the amount of money that’s spent on the prosecution and enforcement of marijuana laws.”

Virginia Attorney General Mark Herring expressed his support for decriminalizing cannabis in an op-ed for the Daily Press in June, writing that criminalizing minor marijuana possession has major “human and social costs,” which disproportionately affect minorities and people of color.

“That is why Virginia should decriminalize possession of small amounts of marijuana, address past convictions, and start moving toward legal and regulated adult use,” Herring wrote.

In a November interview with Capital News Service, Herring said that while he acknowledges the economic benefits of legalization, he is more concerned about the criminal justice aspects of the state ban on legal marijuana. 

“Virginia is moving in the wrong direction,” Herring said. “We have 29,500 Virginians who were arrested for marijuana possession in 2017. That is a huge number, and it is not working.”

CNS Reporter Jeff Raines interviewing employees of Kultivate Wellness. Kultivate Wellness. Wednesday, Nov. 27, 2019. (CNS Photo by Morgan Edwards)

Herring stated in his op-ed that citizens arrested for marijuana possession could “still be stuck with a criminal record, lose their job, student aid, certain public benefits including housing assistance, and it can even affect custody rights.”

Jenn Michelle Pedini, executive director for the nonprofit Virginia National Organization for the Reform of Marijuana Laws, said the 2020 General Assembly session could be incredibly consequential for the future of the cannabis industry in the commonwealth and feels that “several very historic” bills could be passed.

NORML has worked since the 1970s to legalize non-medical marijuana in the U.S. and advocates for responsible, adult cannabis use without penalty.

“Last year, we became the fourth state in the nation to allow school medical professionals to administer medical cannabis to registered kids,” Pedini. “We really are doing big things in Virginia — it just largely goes unnoticed.”

Back on the farming side, Williamson and Stretch are finishing what they consider to be a successful first harvest. This winter will be used to strategize how they can improve their operations and accommodate more plants. Williamson said that smaller farmers like themselves are working cooperatively to purchase wholesale seeds and streamline operations. Williams said VDACS expects Virginia hemp to grow in acreage as growers ramp up their operations in the spring. 

Written by Jeff Raines and Morgan Edwards, Capital News Service. Christopher Brown contributed to this report. Top Photo: Jacob Stretch showing his industrial hemp flower. Field Station Farm. Friday, Nov. 22, 2019. (CNS photo by Morgan Edwards)