Evan Somogyi was sitting in his shop trying to explain the difference between marijuana-derived CBD and hemp-derived CBD when an older woman overheard part of the conversation and got spooked, thinking she had stumbled into a pot store.
“I heard THC and said, ‘Let me get the heck outta here,’ ” the woman said on her way out the door of Kultivate Wellness in Chesterfield County. “I didn’t think we had those yet in Virginia.”
“No, we don’t,” Somogyi told her. “This isn’t a marijuana store. We specialize in CBD here.”
Somogyi, the owner of Richmond head shop chain Kulture, opened his standalone CBD store a few months ago in a Midlothian shopping center as a way to distance his wellness-oriented products from the smoking-centric vibes of his other locations.
But the skittishness of his would-be customer underscores the confusion surrounding Virginia’s rapidly evolving laws on medical marijuana and industrial hemp, and the CBD health craze that straddles both.
That confusion led to conflict in this year’s General Assembly session, which just concluded two weeks ago. The five companies licensed to open Virginia’s first medical cannabis dispensaries later this year clashed with farmers who want to be able to grow the plants used to make the largely unregulated hemp CBD products.
The hemp products already are available in some health stores, gas stations, pharmacies and new business ventures like Kultivate Wellness, which offers CBD-infused tinctures, tea, coffee, honey, shampoo, body wash, creams, crumbles, pet treats and bath bombs. Another hemp wellness shop, Your CBD Store, a franchise of a national chain, recently opened at Regency mall in Henrico County.
CBD, or cannabidiol, is a compound found in both marijuana and hemp plants. Though it is mostly unvetted by the U.S. Food and Drug Administration, proponents say it can help relieve pain, anxiety, nausea, seizures and other ailments, but without the marijuana high.
THC, or tetrahydrocannabinol, is the main psychoactive compound in marijuana plants. Hemp CBD products contain only minimal amounts of THC. Marijuana-derived CBD products can be offered in a variety of THC levels, ranging from mild to potent depending on a user’s medicinal needs and tolerance.
Graham Redfern, a farmer based in Ruther Glen who has grown hemp for research purposes, said the hemp-based CBD products with commercial potential for people like him should be treated like any other dietary supplement.
“Under the industrial hemp side of things, this is going to be a nutraceutical, wellness product,” Redfern said. “Not medicine.”
This year, lawmakers passed legislation expanding the marijuana-derived CBD and THC-A products the dispensaries will be allowed to sell, moving beyond oils to include lozenges, sprays, capsules, patches and lollipops. More significantly, the bill relaxes rules on allowable levels of THC, a change supporters say will let users get “full therapeutic strength” medicine. The legislation allows up to 10 milligrams of THC per dose, an amount sufficient to produce an intoxicating effect in some people.
The legislature also passed a bill conforming Virginia law to the 2018 federal farm bill that legalized hemp. That bill’s definition of acceptable hemp products includes “oil containing an industrial hemp extract” and “food or food additives for human consumption,” legitimizing hemp-based CBD and fueling farmers’ hopes for a lucrative new cash crop.
The hemp bill was concerning to some companies who invested significant sums of money to get an official medical cannabis license from the Virginia Board of Pharmacy. The Virginia Medical Cannabis Coalition, an umbrella advocacy group for the five licensees, believes customers could get confused, mixing up the heavily regulated pharmaceutical CBD — which patients can get only after registering with the state and getting a doctor’s permission — with the lower-grade hemp version that doesn’t have the same consumer safety protections.
“Why should our CBD products be treated like weapons-grade plutonium but their CBD products can be sold over the counter?” said Jeremy Unruh, the director of regulatory and public affairs for PharmaCann, a cannabis company with a license to open a dispensary in Staunton.
The state-sanctioned dispensaries will have to grow their marijuana plants in tightly controlled indoor conditions, Unruh said, while the hemp plants used to make a similar product can be grown outdoors with a higher risk of contamination from heavy metals or pesticides. The two industries don’t have to be kept in “separate silos,” Unruh said. Virginia policymakers could craft a common set of standards, he said, and allow the high-THC marijuana growers to do business with the high-CBD hemp growers.
“It’s about figuring out how to harmonize those two so that we’re creating a cannabinoid ecosystem so that these groups become trading partners and these transactions can be taxed appropriately,” Unruh said.
Hemp CBD skeptics say buyers won’t be able to tell what’s in the stuff they’re buying. In December, the FDA issued a statement saying it views CBD or THC-infused food and dietary supplements as “unlawful” in interstate commerce because they contain active ingredients found in other FDA-approved drugs. Last June, the agency approved a drug called Epidiolex, a form of cannabidiol used to treat severe epilepsy. The agency is under pressure to update its CBD guidance to clarify the legality of hemp products, but the recently announced resignation of FDA chief Scott Gottlieb has cast uncertainty over that process.
Sen. David Marsden, D-Fairfax, who has helped fine-tune the state’s medical cannabis program since its 2015 inception as a narrow measure to help children suffering from severe epilepsy, introduced a bill this year to ban hemp products pitched as medicinal. That bill failed, but Marsden said he plans to file a request with Attorney General Mark Herring for an opinion on how hemp products can be regulated.
“We spent five years putting this together,” Marsden said. “And I just don’t want it sabotaged by get-rich-quick folks in the hemp world.”
Marsden said he wants to see Virginia farmers succeed, as long as that success is consistent with public safety.
Hemp-based CBD proponents say their detractors are engaging in a new form of “reefer madness,” spreading unfounded fears about the products that have helped build the demand for their pharmaceutical-grade counterparts.
Jason Amatucci, the founder and executive director of the Virginia Industrial Hemp Coalition, said the licensed medical cannabis companies are trying to keep all the CBD business to themselves.
“They want it all. They want everything under their wing,” Amatucci said. “They want total crony capitalism where they have five vertically integrated companies that have pure dominion over all things cannabis in Virginia. And that’s just not going to fly.”
At a recent hemp summit in Danville, an official with the Virginia Department of Agriculture and Consumer Services said the agency has approved 140 hemp grower registrations since July, with 250 more pending approval or renewal, according to a news release from the Virginia Farm Bureau.
Kyle Shreve, executive director of the Virginia Agribusiness Council, called hemp “one of the more exciting propositions” in the state agricultural community, one with “tremendous earning potential.” Though the hemp conversation once focused on its potential uses as a fiber, biofuel and livestock feed, Shreve said, the CBD industry offers a more immediate market for farmers’ crops.
“There’s a growing demand for this stuff,” Shreve said. “And we think it should be grown and processed right here in Virginia.”
The hemp bill and multiple medical cannabis bills are awaiting Gov. Ralph Northam’s signature.
Supporters of marijuana legalization or decriminalization will have to wait at least another year. Bills to undo the state’s prohibition on marijuana failed early in the legislative session. They’re likely to return in 2020 after an election year that could see Democrats, who have typically been more favorable to marijuana reform, retake control of the General Assembly.
Though the medical cannabis program will still be limited to a small number of dispensaries that won’t offer marijuana flowers that can be smoked or vaped, the state’s leading marijuana reform group hailed the 2019 session as positive, despite the tension with hemp interests.
“Are these unregulated providers in direct competition with our licensed facilities? Yes. Clearly,” said Jenn Michelle Pedini, executive director of Virginia NORML. “But the good news for consumers is that they will have a place to go get safe, regulated medicine.”
Sen. Siobhan Dunnavant, R-Henrico, who sponsored one of the bills expanding the limits of the medical cannabis program, said the new rules would give patients and doctors more flexibility to choose the right CBD-to-THC ratio, while limiting the amount of THC in a single dose to avoid negative reactions in people unfamiliar with medical cannabis.
“We’re looking to the future to make sure that we keep building the program right,” Dunnavant said.
A separate bill sponsored by Marsden would allow patients to designate a registered agent to handle medical cannabis on their behalf, allowing spouses or home health care workers to accept deliveries of the medicine without fear of legal trouble. Marsden’s bill also would allow the five dispensaries to transfer products between facilities to ensure each location has an adequate supply.
The General Assembly also passed a bill to allow school health officials to store and dispense medical cannabis products without fear of criminal prosecution. The legislation also shields students from being expelled for medical cannabis, as long as they have valid paperwork.
For Somogyi, who started the first Kulture head shop about 20 years ago, Virginia’s moves toward medical marijuana are well beyond what he thought possible a few years ago. He called the cannabis industry his “life’s work,” and said he hopes he’ll eventually have a chance to open a state-sanctioned dispensary alongside the bigger cannabis companies from out of state. He knows the Kultivate Wellness shop exists in something of a legal gray area. But he said he tries not to dwell on it, because CBD is everywhere.
“I don’t see how they can come in and say, ‘You can’t sell this anymore,’ ” Somogyi said.
For anyone confused about the differences between the medical cannabis program and the agricultural hemp program, Redfern, the hemp farmer, had a simple suggestion.
“Just start Googling,” Redfern said. “One’s marijuana. And one’s not.”