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High Times in the Old Dominion

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High Times in the Old Dominion High Times in the Old Dominion Presented by: Anne G. Bibeau, Esq. and Jonathan Gallo, Esq. VanBlackLaw.com 1 • Virginia Law • Federal Law • Cannabis and Cannabis Production • Employer Considerations • Employment Discrimination AGENDA • Cases and Legislation VanBlackLaw.com 2 Virginia and Cannabis • 2015: Virginia law allowing use of cannabis oils to treat intractable epilepsy. No provision for production or for patients to obtain a doctor’s permission. • 2017: Virginia approved in-state production of medical cannabis oil by five providers, one per Health Service Area. Approved licensed “pharmaceutical processors” to grow, extract, dispense, and deliver medical cannabis oils, all on site. • 2018: Virginia expanded medical cannabis oil program to any diagnosed condition. • 2019: Virginia expanded the spectrum of products that will be available for treatment to include items like capsules, topicals, lozenges, lollipops, and suppositories. VanBlackLaw.com 3 Virginia’s Affirmative Defense • Virginia law provides an affirmative defense to criminal prosecution for possession of cannabidiol (CBD) oil or tetrahydrocannabinol acid (THC-A oil)* • DOES NOT LEGALIZE IT! • POSSESSION OF MARIJUANA IS STILL ILLEGAL IN VIRGINIA *Does not include industrial hemp which is defined as “any part of the plant Cannabis sativa, including seeds thereof and any derivative, extract, cannabinoid, isomer, acid, salt, or salt of an isomer, whether growing or not, with a concentration of tetrahydrocannabinol that is no greater than that allowed by federal law.” Code of VA §3.2-4112. (Federal Law defines “industrial hemp” as “the plant Cannabis sativa L. and any part of such plant, whether growing or not, with a delta-9 tetrahydrocannabinol (THC) concentration of not more than 0.3 percent on a dry weight basis.” 7 U.S.C. §5940. VanBlackLaw.com 4 Virginia’s Affirmative Defense • CBD oil: any formulation of processed Cannabis plan extract that contains at least 15% CBD but no more than 5% THC, or dilution of the resin of the Cannabis plant that contains at least 5mg of CBD per does but not more than 5% THC • THC-A oil: any formulation of processed Cannabis plant extract that contains at least 15% tetrahydrocannabinol acid but not more than 5% tetrahydrocannabinol, or a dilution of the resin of the Cannabis plant that contains at least 5mg of tetrahydrocannabinol acid per dose but not more than 5% tetrahydrocannabinol VanBlackLaw.com 5 Virginia’s Affirmative Defense • Affirmative defense applies only if an individual: 1. Has valid written certification from a Board of Pharmacy registered physician, physician assistant, or licensed nurse practitioner AND 2. Has a current active patient and/or agent registration issued by the Board of Pharmacy. • If the individual files the valid written certification with the court at least 10 days prior to trial and a copy to the Attorney for the Commonwealth, such written certification shall be prima facie evidence that the oil was possessed pursuant to a valid written certification. • VA Code §18.2-250.1(C) VanBlackLaw.com 6 Virginia’s Pharmaceutical Processors • Five (5) Pharmaceutical Processors are expected to open across Virginia by the end of the year, and are expected to begin selling products shortly thereafter. (Graphic: Virginia NORML) VanBlackLaw.com 7 Federal Law – The Controlled Substances Act • Controlled Substances Act of 1970 – law regulating the manufacture, importation, possession, use, and distribution of certain substances. The Act imposes penalties for unlawful manufacturing, distribution, and dispensing of controlled substances. • The Act places all regulated substances into one of five schedules based on the substance’s accepted medical use, potential for abuse, and safety and potential for addiction. VanBlackLaw.com 8 Federal Law – The Controlled Substances Act • Schedule I: The drug or substance has a high potential for abuse, has no currently accepted medical use in treatment in the United States, and there is a lack of accepted safety for use of the drug or substance under medical supervision.* • Examples: heroin, lysergic acid diethylamide (LSD), and marijuana. *Note: There are currently FDA-approved medications that contain the active ingredient, dronabinol, a synthetic form of THC used to treat chemotherapy-induced nausea and vomiting as well as anorexia related to weight loss in patients with AIDS. (e.g. Marinol®). VanBlackLaw.com 9 2018 Farm Bill and Industrial Hemp • Effective Jan. 1, 2019, legalizes cultivation and sale of industrial hemp at federal level. • Hemp and hemp-derived products are removed from the Controlled Substances Act. • States have authority to regulate production/sale of hemp and hemp products within their borders. • Hemp is a variety of the Cannabis sativa L. that contains not more than 0.3% THC on a dry weight basis. • Marijuana is a different variety of the Cannabis sativa L. plant and contains high concentrations of THC. Marijuana is still a Schedule I drug. It is illegal to transport marijuana products over state lines. • CBD may be derived from either variety of the Cannabis sativa L. plant. VanBlackLaw.com 10 CBD vs. THC – Understanding the Difference • Both CBD and THC each one of over 100 cannabinoids that have been identified in the cannabis plant. (There are hundreds of other non-cannabinoid compounds as well). • CBD can be extracted from both hemp and marijuana. • Both have the same molecular structure, (21 carbon, 30 hydrogen, 2 oxygen) but the atoms are arranged differently. VanBlackLaw.com 11 CBD vs. THC – Understanding the Difference VanBlackLaw.com (Graphic: richmondmag.com) 12 CBD vs. THC – Understanding the Difference • The structural formulas of • CBD is a negative allosteric Tetrahydrocannabinol (THC) and modulator of CB1 so it Cannabidiol (CBD). changes the shape of the CB1 receptor weakening its ability bind to THC (Graphics: analyticalcannabis.com) VanBlackLaw.com 13 Food & Drug Administration • It is illegal to market any CBD product (from hemp or marijuana) as having therapeutic benefits or as a dietary supplement unless the FDA has reviewed and approved it. • FDA approves drugs only after determining that the drug is safe and effective for its intended use. • Approved: • Epidiolex - contains CBD. For the treatment of seizures associated with Lennox-Gastaut syndrome or Dravet syndrome. • Marinol and Syndros – contains dronabinol, a synthetic form of THC. For therapeutic uses, including the treatment of anorexia associated with weight loss in AIDS patients. • Cesamet - contains nabilone, a synthetic form of THC. For the treatment of the nausea and vomiting associated with cancer chemotherapy. VanBlackLaw.com 14 CBD – Availability and Authenticity • “CBD” products are currently available in many stores. • That doesn’t make it legal or authentic. • Fake, untested, and unapproved products have recently flooded the market and are available at gas stations or convenient stores. • There are NO testing regulations for these products and NO way to know whether they are safe or effective, how much CBD is in the oil, and whether the CBD comes from industrial hemp or marijuana. VanBlackLaw.com 15 What does this mean for employers? • Drug testing typically reveals THC, not CBD. But even hemp-based CBD may contain trace amounts of THC. Some tests only test for cannabinoids (THC and CBD) and do not distinguish. • Drug testing will show whether the individual consumed THC within the last several weeks. It does not show whether the individual is currently impaired. • Employees using CBD oil may be entitled to an accommodation under the ADA for the underlying medical condition. • Is the employee also entitled to an accommodation for CBD use? What if it’s derived from industrial hemp? • Virginia law does not provide any protection in employment for cannabis use. VanBlackLaw.com 16 Americans with Disabilities Act • Applies to employers with 15 or more employees. • Prohibits employment decisions based on disability if the individual is qualified to perform the essential functions of the job, with or without a reasonable accommodation. • Exception: if disabled individual poses a direct threat that cannot be eliminated by reasonable accommodation. • Requires employers to provide reasonable accommodations to employee’s/applicant’s disabilities, unless such accommodation creates an undue burden for the employer. VanBlackLaw.com 17 ADA and Illegal Drugs • Anyone who is “currently engaging” in the illegal use of drugs is not a “qualified individual with a disability.” • The term “qualified individuals” does include those who: • have been successfully rehabilitated and are no longer engaged in the illegal use of drugs; • are currently participating in a rehabilitation program and are no longer engaging in the illegal use of drugs; and • are regarded, erroneously, as illegally using drugs. • EEOC Guidance: “[A] person who casually used drugs illegally in the past, but did not become addicted is not an individual with a disability based on the past drug use. In order for a person to be ‘substantially limited’ because of drug use, s/he must be addicted to the drug.” VanBlackLaw.com 18 ADA: what is “current”? The EEOC has defined “current” to mean that the illegal drug use occurred “recently enough” to justify the employer’s reasonable belief that drug use is an ongoing problem. • If an individual tests positive on a drug test, he or she will be considered a current drug user, so long as the test is accurate. • “Current” is not limited to the day of use, or recent weeks or
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