View Document - Virginia Attorney General Opinions (2024)

*1 Opinion No. 23-012

*1 April 20, 2023

*1 Commonwealth's Attorney for Tazewell County

*1 Post Office Box 946

*1 Tazewell, Virginia 24651

*1 I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

*1 You ask whether a business practice of giving away marijuana, free of charge, to customers who purchase other merchandise constitutes the illegal distribution of marijuana.

*1 You inquire regarding certain practices of businesses operating CBD stores and smoke shops (collectively, “shops”). You relate that, throughout the Commonwealth, some of these shops engage in the following business practices, or practices that are substantially similar. In addition to offering certain merchandise, such as grow supplies, CBD, or hemp products, for sale, the shops claim to be private, “members only” businesses that facilitate the adult sharing of marijuana among their member customers. Although the shops technically do not offer any marijuana for direct sale, customers who purchase shop merchandise receive marijuana as a complimentary “gift.” The amount of marijuana “gifted” reflects the dollar amount of the goods purchased. I assume from your description that no gift of marijuana is provided to individuals who do not make a purchase. You further relate that the gifted marijuana is sourced from a “community of growers” who “gift” it to the shop; the shop owners engage in profit sharing with the growers using the proceeds of the merchandise sales.

*1 The General Assembly enacted the Virginia Cannabis Control Act (the “Act”) in 2021.¹ Pursuant to the Act, personal possession of certain amounts of marijuana by individuals 21 years of age or older is now legal in the Commonwealth.² The distribution of marijuana for recreational use, nevertheless, remains illegal under Code § 18.2-248.1.³

*1 As now codified in § 4.1-1101.1, however, the Act further provides that “[notwithstanding the provisions of § 18.2-248.1, no civil or criminal penalty may be imposed for adult sharing of an amount of marijuana that does not exceed one ounce or of an equivalent amount of marijuana products.”⁴ For purposes of the Act, “‘adult sharing’ means transferring marijuana between persons who are 21 years of age or older without remuneration.”⁵⁶ Section 4.1-1101.1 explicitly excludes from permissible ““adult sharing” any

*2 Accordingly, under certain circ*mstances, “sharing” of marijuana between adults is legal and adults “sharing” marijuana as allowed under § 4.1-1101.1 does not constitute unlawful distribution. You ask whether the conduct you describe falls within the ambit of legal adult sharing.

*2 “When construing a statute, our primary objective is to ‘ascertain and give effect to legislative intent,’ as expressed by the language used in the statute.”⁷ In interpreting legislative intent as expressed by “the plain meaning of the statutory language,”⁸ courts “presume that ‘the legislature chose, with care, the words it used when it enacted the relevant statute.”’⁹

*2 Section 4.1-1101.1 clearly establishes that “‘[a]dult sharing’ does not include instances in which (i) marijuana is given away contemporaneously with another reciprocal transaction between the same parties ... or (iii) a gift of marijuana is contingent upon a separate reciprocal transaction for goods or services.”¹⁰ Because the Act otherwise permits certain exchanges of marijuana when there is no “remuneration,” this language serves to foreclose potential loopholes for schemes where there are transactions comprising direct or indirect exchanges that involve items of value in an attempt to circumvent the law.

*2 In the scenario you present, shop customers who buy merchandise are “gifted” with an amount of marijuana that reflects the dollar value of the items purchased. Accordingly, the customers and the shop are engaged in a “reciprocal transaction”¹¹ for the sale of goods. Should the “gifting” occur upon sale, then it will have occurred “contemporaneously with” that transaction, and if a “gift” is available only with a purchase of other goods, then it is ““contingent” upon that purchase.¹² Neither an establishment's status as a private club nor the source of its marijuana is material to whether the establishment or its customer members are distributing marijuana unlawfully; the provisions of § 4.1-1101.1 do not include either “private” or “public” or distinguish between private or public sharing.¹³ Thus, to the extent a customer is “gifted” an amount of marijuana either at the same time as, or dependent upon, the sale of legal, non- marijuana merchandise, such a transaction is not “adult sharing” and constitutes the unlawful distribution of marijuana.

*2 Accordingly, based on the facts provided, it is my opinion that a CBD store or smoke shop engages in the illegal distribution of marijuana, in violation of Code § 18.2-248.1, when the shop “gifts” marijuana to customers contemporaneously with, or contingent upon, the sale of merchandise as described in the scenario presented.¹⁴

*3 With kindest regards, I am,