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Issues & Trends

Changing Currents in Local Cannabis Law

February 06, 2023

By Jeremy Conrad

A bumper crop of legislation in the past year is directing the District of Columbia, Maryland, and Virginia along different paths toward cannabis regulation. New laws involve providing access to cannabis; regulating the crop’s cultivation, sale, and use; and ensuring that the rapidly growing business provides opportunities for those who were harmed by the classification of marijuana as a Schedule 1 controlled substance.

On January 30, a group of cannabis law experts convened at a virtual event held by the D.C. Bar District of Columbia Affairs Community to discuss recent developments and the outlook for cannabis in 2023.

cannabis law expert panelists

Virginia adult residents gained legal access to cannabis for recreational use in 2021, and in July of this year Maryland residents will join them. The status of cannabis in the District, however, is a little more complicated.

Rafi Aliya Crockett, a commissioner on the D.C. Alcoholic Beverage Control Board, described a city that has been overwhelmingly in support of progressive cannabis policy continually held back by Congress. “We were one of the first jurisdictions to pass a ballot initiative to legalize medical cannabis. That was 25 years ago, back in ’98, but, as with many of the things that are good for the people of the District of Columbia, Congress decided that they knew better than nearly 70 percent of the voters,” she said. Crockett described how a budget rider prevented medical use cannabis legalization for more than a decade.

In 2014 the city passed Initiative 71, the Legalization of Possession of Minimal Amounts of Marijuana for Personal Use Act, making it legal for someone at least 21 to possess two ounces or less of marijuana but not to sell it for recreational use.

Maryland and Virginia, by contrast, are closer to establishing regulated recreational markets. Brian Moran, former Virginia secretary of Public Safety and Homeland Security, was involved in creating the state’s medical cannabis regime and is now a lobbyist for the cannabis industry. He shared his mixed outlook on recent legislative developments.

“We have a one-term governor system here in Virginia, so you’re in and out in four years. You don’t have that continuity in terms of implementing a long-term agenda,” Moran said, noting that the current governor did not run on a platform of cannabis legalization and was unlikely to be a strong advocate.

In the legislature, a partisan deadlock threatens to stall progress. “We’re very much a divided government right now,” Moran said. “Republicans control the House of Delegates; Democrats control the State Senate.”

However, Moran said that he felt the results of a recent vote on Virginia Senate Bill 1133, clearing the Rehabilitation and Social Services Committee in a 9–6 partisan vote, had restored some hope. The bill includes provisions establishing a retail cannabis market in the state.

Meanwhile, Maryland’s medical cannabis program generated more than $500 million in revenue in 2022. “That’s nothing to sneeze at,” said Eddie Pounds, partner at the Maryland firm Perry, White, Ross & Jacobson. He added that unlike Virginia, Maryland’s government is entirely Democratic.

In November, Maryland voters overwhelmingly approved a ballot initiative legalizing adult recreational cannabis. The measure will not take effect until July 1, 2023, but plans are already underway for marijuana regulation to transition from the state’s Medical Cannabis Commission to its Alcohol and Tobacco Commission, Pounds said.

Although commercial sale technically would be legal as of July 1, Pounds said that he expected some delays to accommodate the establishment of licensing structures and to implement the equity access provisions under which licenses are issued. “My hope is that we can see sales begin sometime in the fourth quarter of 2023,” he said.

Prevented from establishing a regulated commercial market, the District has sought to ease access to medical cannabis. In 2022 the Medical Marijuana Self-Certification Amendment Act made it possible for D.C. residents over 65 to certify their medical use of cannabis without consulting a doctor. The program was wildly popular, said Crockett, leading to the pilot’s expansion to all D.C. residents age 21 and up. More recently, the pilot has expanded to include nonresidents, though they may do so only for a 30-day period with a single renewal.

However, the medical cannabis production market, which is presently limited to around a half-dozen licensed producers, cannot sustainably support the needs of a city with nearly 700,000 residents, thousands of commuters, and more than 20 million visitors a year, Crockett said. “As a result, we have a very strong unlicensed market that grew from your old-school ‘plug’ to pop-up events to what we see now along some of our major corridors … brick-and-mortar shops,” she added.

This last group, the “gifting shops,” have been the subject of recent efforts at creating a sustainable, regulated market. Passed in December 2022, the Medical Cannabis Amendment Act of 2022 is designed to bring them into the fold. The bill, if it survives mayoral and congressional review, would expand business opportunities by raising licensing caps. There are currently seven licensed dispensaries and nine licensed cultivators in the District, and no testing labs. “We currently have an open application period for a testing lab … we need a testing lab, please,” Crockett said.

The act would create new licensing categories for manufacturers, couriers, and internet retailers, and half of the licenses would be set aside for “social equity applicants” — D.C. residents who have been disproportionately harmed by the criminalization of cannabis, said Crockett, describing the law as a wholesale overhaul of the existing medical cannabis system.

In addition, the bill would allocate money from the Medical Cannabis Social Equity Fund to provide grants, loans, and technical assistance to social equity applicants and to medical cannabis-certified enterprises.

Crockett cautioned that change doesn’t happen overnight. She said that, assuming the bill doesn’t meet resistance from the mayor or Congress, its various enactments and application periods would delay any significant change until sometime next year.

In the interim, no civil enforcement actions have been taken against the unlicensed marijuana operators, whether they are delivery services or brick-and-mortar gifting services, Crockett said. The new bill would provide the mayor with civil enforcement options against unlicensed operators 315 days after the act’s effective date.