Medical Cannabis: Virginia opens a new door

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With the stroke of the governor’s pen on March 9, 2018, the Commonwealth of Virginia made way for use of cannabis oil. But, they did it differently with a model approach that other states might follow.

The backstory on medical cannabis in Virginia

Virginia House of Delegates Bill 1251 and Senate Bill 726 both ruled, “It is unlawful for any person knowingly or intentionally to possess marijuana unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by the Drug Control Act.” So, there is no change in the state’s position on adult use cannabis.

So far, nothing’s new. But, both documents go on to read,

“In any prosecution under this section involving marijuana in the form of cannabidiol oil or THC-A oil as those terms are defined… it shall be an affirmative defense that the individual possessed such oil pursuant to a valid written certification issued by a practitioner in the course of his professional practice…for treatment or to alleviate the symptoms of (i) the individual's diagnosed condition or disease or (ii) if such individual is the parent or legal guardian of a minor or of an incapacitated adult…, such minor's or incapacitated adult's diagnosed condition or disease. If the individual files the valid written certification with the court at least 10 days prior to trial and causes a copy of such written certification to be delivered to the attorney for the Commonwealth, such written certification shall be prima facie evidence that such oil was possessed pursuant to a valid written certification.”

In each document, the words “diagnosed condition or disease” replaced “intractable epilepsy.”

What should you see in this backstory on medical cannabis in Virginia?

Virginia legislation has accomplished several things:

  1. The original proposal dealt only with intractable epilepsy, a restriction typical of states admitting medical cannabis. Alabama, Delaware, Indiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Utah, Wisconsin, and Wyoming permit buy, hold, and transport of cannabis oil for treatment of epileptic seizures that have proven resistant to other therapies.
  2. When this legislation strikes through “intractable epilepsy,” it widens the treatable conditions to any “diagnosed disease or condition.” And, that’s a much broader class than the lists of 40 to 50 conditions provided by other states.
  3. It creates an easy to comply with a process for “affirmative defense.”

The legislation goes on to specifically define what it means as “Cannabidiol Oil.” It’s “a processed Cannabis plant extract that contains at least 15 percent cannabidiol but no more than five percent tetrahydrocannabinol, or a dilution of the resin of the Cannabis plant that contains at least 50 five milligrams of cannabidiol per milliliter but not more than five percent tetrahydrocannabinol.”

It defines “THC-A oil” as “a processed Cannabis plant extract that contains at least 15 percent tetrahydrocannabinol acid but not more than five percent tetrahydrocannabinol, or a dilution of the resin of the Cannabis plant that contains at least 50 five milligrams of tetrahydrocannabinol acid per milliliter but not more than five percent tetrahydrocannabinol.”

While these definitions are narrow and restrictive, they also clarify what is acceptable making the manufacturing, processing, and sale easier.

And, it goes on to define “practitioner” as “a practitioner of medicine or osteopathy licensed by the Board of Medicine.” Here, too, the final documents struck through wordage limiting “practitioner” to one “who is a neurologist or who specializes in the treatment of epilepsy.” And, given the rewording, you can see how they broadened the class of practitioner.

What’s the process to secure medical cannabis in Virginia?

Virginia legislation on medical cannabis does not legalize the buy, hold, and carry. What it does is create an affirmative defense, a set of rules that will void charges if you are prosecuted.

Affirmative defense is a legal principle exercised in Virginia since Colonial Days:

  1. Print out the Affirmative Defense Certificate, a one-sided easy to complete form available at https://www.dhp.virginia.gov/medicine/docs/Cannabidiol_oil.pdf
  2. Provide the certificate form to your practitioner for signature.
  3. Store or attach your signed certificate with your cannabidiol oil.
  4. Show the certificate to law officers when questioned.
  5. If the certificate is refused and you are charged with possession, you should lawyer up and present the certificate to the court 10 days prior to the hearing or trial.

The Virginia model owes its existence to NORML’s Jenn Michelle Pedini, Delegate Bill Cline, Senator Siobhan Dunnavant, Delegate Kaye Kory, Delegate Eileen Filler-Corn, Delegate Steve Heretick, Governor Ralph Northam, and others.

As Virginia opens a new door for medical cannabis…

It takes a centrist position. It broadens the scope of treatable conditions and widens the range of practitioners permitted to recommend use without legalizing cannabis, medical or recreational.

It clarifies what cannabis products are permitted and those that remain outlawed.

And, it identifies what it authorizes as “pharmaceutical processor.” A pharmaceutical processor is a Board-certified facility that:

  • cultivates Cannabis plants intended only to produce cannabidiol oil or THC-A oil
  • produces cannabidiol oil or THC-A oil, and
  • dispenses cannabidiol oil or THC-A oil to a registered patient or, if such patient is a minor or an incapacitated adult…, such patient's parent or legal guardian for the treatment of intractable epilepsy.

Such processors must dispense or deliver no more than a 90-day supply in person to patients who are Virginia residents with a valid, current, and written Affirmative Defense Certificate.

In opening this door, Virginia relieves itself of expenses in monitoring, administration, and prosecution. In passing the burden to the citizen, it makes things easier for the public, too. In the short- and long-term, the Virginia legislation is the model for a rational, cost-efficient, and principled approach to medical cannabis.