Did Virginia just legalize medical marijuana?
The Virginia House and Senate have unanimously passed HB1251 and SB726, respectively, to expand Virginia’s medical cannabis oil program from the single qualifying condition of intractable epilepsy to any diagnosed condition. The legislation provides an affirmative defense for possession, and does not make possession legal.
When will the law take effect?
Governor Northam signed the identical Joint Commission on Healthcare bills HB1251 on 3/9/18 and SB726 on 4/9/18. He added an emergency clause to the bills during the legislative process allowing immediate enactment with his signature. First, this expands the affirmative defense for possession to all patients with written certifications. Second, it will expand access to Virginia's regulated medical cannabis program once it becomes operational.
The affirmative defense certificate has been updated to reflect the change in law.
What’s affirmative defense?
Affirmative defense defeats or mitigates the legal consequences of the defendant’s otherwise unlawful conduct. While it will not be legal, technically, to possess the oils, a patient or their caregiver would be able to present their signed certificate if they were stopped by law enforcement or in a court of law as their defense for possession of the oil.
Is there a list of physicians who will sign the affirmative defense certificate?
No, any doctor, MD or DO, licensed to practice medicine in the state of Virginia can sign the affirmative defense certificate. Simply print it out and take it with you to your appointment.
The registry for patients and physicians will be established once Virginia is a little farther along in the licensing process.
Affirmative defense guidelines
- Print the Affirmative Defense Certificate.
- Take it to your physician and ask them to sign it.
- Keep the signed certificate with your oil at all times.
- Present your certificate if questioned by law enforcement.
- If not accepted and charged with possession, call an attorney or ask for court-appointed counsel.
- Present your signed certificate 10 days prior to trial as directed.
How will patients get medical cannabis oil?
In 2017, Virginia approved a regulatory program for the in-state production of medical cannabis oil by five providers initially, one per Health Service Area, who will grow, extract, dispense and deliver the medical cannabis oils. These licensed providers are called “pharmaceutical processors” in the Code, and are simply vertically-integrated dispensaries, meaning everything from growth through dispensation is done on one site by one provider. Once operational, patients will register with the program and then be able to fill their recommendation at one of five “pharmaceutical processors” in Virginia.
Is this only for oils?
The affirmative defense applies to oil products only. The oil must contain at least 5mg/mL CBD or at least 5mg/mL THCA-A and may contain no more than 5% THC. The affirmative defense does not apply to flower, to other products, or to products outside the allowed cannabinoid ratios.
Will doctors write prescriptions for medical cannabis?
No, it is legally inaccurate to use the word “prescription.” Practitioners will recommend the oils, not prescribe them. Prescribe is reserved for FDA-regulated products, and means to write a prescription on a DEA-numbered prescription pad.
When will my doctor be able to write me a recommendation?
Once the licenses are awarded, the facilities will have one year to become operational. The request for applications (RFA) for pharmaceutical processors is open April 16 through June 8. Licenses for facilities are scheduled to be awarded in September. Once a license is awarded, the pharmaceutical processor has one year to become operational. Virginia should have operational facilities in late 2019.
How do I find a doctor who knows about medical cannabis?
Talk to your doctor and ask if she knows about the coming change in law. Share the with her the eighth edition of Emerging Clinical Applications for Cannabis and Cannabinoids, A Review of Scientific Literature.
Follow Cannabis Commonwealth for up-to-date patient and provider information as the program rolls out.
Are the oils psychoactive?
Yes, psychoactive means to cause a change in the brain. Psychoactive does not mean intoxicating, psychotropic or hallucinogenic. (Also, marijuana is not hallucinogenic). If CBD were not psychoactive, it would not be a mild antidepressant nor possess anti-seizure, anti-depressant or anti-anxiety capabilities. It is accurate to instead say the oils are non-intoxicating.
Isn't this just for CBD oil?
No, Virginia will produce whole-flower extractions. The oils must contain at least 5mg/mL CBD or at least 5mg/mL THCA-A and may contain no more than 5% THC.
Isn’t CBD already legal in all 50 states?
No, cannabidiol (CBD), like all organic cannabinoids, is considered by DEA, Congress, FDA, and NIDA to be a schedule I controlled substance under federal law. The DEA recently reaffirmed its position here.
Yeah, but if it’s from hemp it's totally legal, right?
The DEA does not agree with this position. States the DEA: “Section 7606 of the Agricultural Act of 2014 authorizes institutions of higher education (e.g., universities) and state Departments of Agriculture to grow and cultivate ‘industrial hemp’ (defined under the Act as marijuana with a THC content of 0.3 percent or less) for agricultural research purposes where permitted under state law. However, the Agricultural Act of 2014 does not permit such entities, or anyone else, to produce non-FDA-approved drug products made from cannabis.” In February 2018, the 9th U.S. Circuit Court of Appeals in San Francisco heard oral arguments in the Hemp Industries Association’s petition challenging the U.S. Drug Enforcement Administration’s position. The Court denied the petition, upholding the DEA’s classification.
But you can already buy CBD oil online!
That doesn’t make it federally legal. The CBD products you’re buying from Amazon, Walmart or the pet store are typically made from crystalline isolate reconstituted in a carrier oil. CBD is isolated from cannabis extracts and crystalized, usually in China or Spain, and then imported to the US. It is then mixed into a food-grade oil like hemp or olive, and then sold by retailers. Labeling the product “CBD hemp oil” or "hemp-derived CBD" does not make it legal. These products are not required to meet any safety, quality, consistency, or labeling standards. Buyer beware!
Will other states accept the affirmative defense certificate at their dispensaries?
States that offer reciprocity might allow you to purchase medicine for use while in that state. Calling the dispensary you plan to visit is the best way to answer that question. Washington, DC did not include Virginia in its list of states to which it offers reciprocity. Maryland’s program intended to allow non-resident participation but is still denying out-of-state applicants.
Remember, make good choices.
- Don't consume your medicine in public.
- Don't take it out of your home unless absolutely necessary.
- Keep your signed certificate with the oil at all times.
- If you must travel with your medicine, place it in a locked container in your trunk.
- Don't drive impaired. Ever.
- Don't post on social media about your medicine.
I have more questions!
Great! We’re here to help. Feel free to contact Virginia NORML at 804-464-7050 Monday through Friday from 9AM to 6PM.