Debriefing the 2021 WV Legislative Session – Marijuana

By Brian Skinner, Esq.

Even though a total of 17 bills related to marijuana were filed for introduction in the West Virginia Senate and House during the 2021 legislative session, only two received any consideration and none crossed the finish line to become law.

Of those 17 bills, three would have lowered or extinguished criminal penalties for possession of small amounts of marijuana (SB 26, SB 591 and HB 2060); three would have legalized the sale of marijuana by adults (SB 649, HB 2291 and HB 2912); one (HB 2517) removed marijuana as a substance to screened for under the requirements of the West Virginia Alcohol and Drug-Free Workplace Act; one would have required minors found in possession of marijuana or a marijuana-related product, to attend classes teaching the dangers of marijuana along with their parents or legal guardians (SB 25); one (HB 2685) would have created a medical cannabis seed certification program in the West Virginia Department of Agriculture; and eight would have amended the West Virginia Medical Cannabis Act (WVMCA) (SB 231, SB 590, HB 2270, HB 2346, HB 2356, HB 2534, HB 2550 and HB 3205).

But only two of the 17 bills received any consideration and neither got any attention in the House of Delegates.

The first, S.B. 590 (Removing restriction preventing medical marijuana from being in edible form) was taken up and recommended for passage by the Senate Committee on Health and Human Resources. The committee amended the bill to include a prohibition on edible marijuana products that have distinct human, animal, or fruit shape, or any shape that may entice children.

The bill passed the full Senate with a vote of 26 to 8 and then went to the House of Delegate where it was referred to the House Committee on Health and Human Resources. Because the bill was never placed on the committee agenda, an attempt was made on the floor of the House to have it discharged from the committee to the full House. However, the House voted to table the motion to discharge and the bill died on the final night of the session.

A second bill involving the medical cannabis was taken up by the Senate Committee on the Judiciary. Senate Bill 231 (Relating generally to medical cannabis), had bipartisan support and would have made significant changes throughout the WVMCA.  

As introduced, the bill would have increased the duration of the educational course that the principals of a medical cannabis organization must complete from four to eight hours.

The introduced bill would have authorized any form of medical cannabis approved by the commissioner upon a recommendation of the advisory board.

It would have authorized the Commissioner of the Bureau for Public Health to enter into reciprocity agreements with any state that has comparable requirements for medical cannabis patients and caregivers to possess, transport, use, and transfer without renumeration, medical cannabis in this and any other such approved state.

The current 30-day supply language would have been modified to authorize possession of medical cannabis by a patient of an amount determined by the commissioner to be appropriate for a 30-day period, by the appropriate measure of volume, weight or concentration level.

In a direct response to the delays in implementing the WVMCA since its enactment in 2017, the bill would have authorized the Office of Medical Cannabis (OMC) to issue compassion certificates — a temporary certification issued by a practitioner for patients and caregivers to grow, possess, use, or give away cannabis without remuneration. 

A compassion certificate authorizes a patient or caregiver to lawfully grow up to 12 mature flowering cannabis plants and up to 12 cannabis seedlings at any one time. Additionally, a compassion certificate authorizes each patient to possess up to four ounces of dry flower or leaf medical cannabis per patient.

The compassion certificate and the OMC’s authority to issue the certificates would become void once the OMC declared that there is sufficient medical cannabis to meet demand through the other means authorized by the WVMCA.

With regard to fees chargable under the WVMCA, the fee for a patient identification replacement card is reduced from $25 to $10, and the $10,000 permit fee requirement for each dispensary location is eliminated. 

The bill also removed several other requirements contained in the current law, such as eliminating the necessity for a criminal background check for an owner of five percent or less in a privately held business entity, and the requirement that before a permit is issued there must be the written approval of the board of health in the county where the permit is to be located.

But the bill also added the requirement that any person employed by a medical cannabis organization involved in the growing, processing, or dispensing of medical cannabis must be 18 years of age or older and registered with the OMC. The OMC would be required to establish a registry of medical cannabis organization employees and would be authorized to charge a registration fee not to exceed $25 for each registrant.

The bill clarified the 1,000 feet from a public, private, or parochial school or a daycare center requirement for dispensaries, by providing that the measurement must be from front door to front door, along the street or streets.

The introduced bill was taken up by the Senate Committee on the Judiciary an amended, in the form of a committee substitute, to increase the tax rate imposed on the gross receipts a dispensary receives or accrues from 10% to 20%. Additionally, sales of medical cannabis would be subject to the taxes imposed by Consumers Sales and Service Tax (§11-15-1 et seq.) and the Use Tax (§11-15A-1 et seq.). Sales of medical cannabis would also be subject to any special district excise tax lawfully imposed by a county or municipality and to any lawfully imposed county or municipal sales and use tax. The exemption from the sales and use tax on sales of prescription drugs does not apply to sales of medical cannabis.

The judiciary committee also added 42 additional serious medical conditions for which a patient can be certified to use medical cannabis. The conditions include Autism, Glaucoma, Hepatitis C, Irritable bowel syndrome, Migraines, Muscular Dystrophy, Myasthenia Gravis, Post-Concussion Syndrome, Rheumatoid arthritis, Tourette syndrome, and Traumatic brain injury.

Dry leaf or plant form, and edible food and beverage were added to the lawful forms of medical cannabis. Dry leaf was previously added by legislative rules, so the bill simply conformed the WVMCA to include these additional forms. The committee substitute included that same prohibition on edible cannabis products contained in S.B. 590, that they may not shaped or designed to entice children to consume them.

Finally, the committee substitute removed the current prohibition on smoking medical cannabis and reduced the four-hour practitioner training requirement to just one hour.

Committee Substitute for S.B. 231 passed the Senate by a vote of 29 to 5. Like S.B. 590, it was also referred to the House Committee on Health and Human Resources with a second reference to the House Committee on the Judiciary. And like S.B. 590, the bill was not taken up prior to end of the 60-day session.

Finally, one other significant piece of legislation involving marijuana was considered by the legislature. During the final days of the session, the Senate Committee on Finance amended H.B. 3300, a bill intended to reduce personal income tax rates, to legalize the sale of recreation marijuana as a source of revenue to replace losses resulting from the reduction and eventual elimination of the personal income tax. The legalization of sale and use of marijuana contained in the amendment would have only become effective if the federal government decriminalized cannabis and cannabis products. Additionally, the bill would have moved the regulation of medical cannabis from the Bureau for Public Health and placed it in the West Virginia Department of Agriculture.

The Finance Committee amendment was later withdrawn on the floor of the Senate and replaced with a new amendment that constituted an agreement between Senate leadership and the Governor. However, provisions related to the legalization of recreational marijuana and relocating the medical cannabis program did not survive. The amended House bill was passed by the Senate but after a historic unanimous vote the House rejected the Senate amendments and the bill ultimately died when the legislature adjourned after completing its constitutionally prescribed 60-day session.

Brian is the former counsel to the West Virginia House of Delegates Judiciary Committee and counsel to the West Virginia Senate Minority Caucus. He was also general counsel to the West Virginia State Health Officer and Commissioner for the Bureau for Public Health. He has almost two-decades of experience as a strategic advisor and chief legal counsel to both executive and legislative branch public officials.