On Legal Marijuana, Congress Should Stay Sessions’ Hand

Buds are removed from a container at the "Oregon's Finest" medical marijuana dispensary in Portland, Oregon April 8, 2014. Over 20 Oregon cities and counties are moving to temporarily ban medical marijuana dispensaries ahead of a May deadline, reflecting a divide between liberal Portland and more conservative rural areas wary about allowing medical weed. Portland, Oregon's largest city, already has a number of medical marijuana clinics and has not moved to ban them. Picture taken April 8, 2014. REUTERS/Steve Dipaola (UNITED STATES - Tags: DRUGS SOCIETY POLITICS HEALTH) - RTR3KMHE

The Trump administration has stayed relatively quiet on the subject of state measures to legalize recreational marijuana. However, recent statements from Press Secretary Sean Spicer and Attorney General Jeff Sessions would suggest a change in tone from candidate Trump’s earlier statement that he’d be willing to let states chart their own course on marijuana policy. Although such a change in policy will likely prove ineffective, the uncertainty it creates only goes to highlight the necessity of congressional action to give states the necessary leeway to pursue their own reforms without relying on executive indulgence.

Since the passage of California’s Proposition 215 in 1996, some 28 states have legalized medical use of marijuana, and eight have passed full legalization, with half of that number coming in the last election. While those eight states passed their reforms at the ballot box, a number of other states are considering legalization bills in the current legislative session. Naturally, this change in the legal landscape has accompanied a shift in public opinion. According to Gallup, support for legalization has gone from about 25 percent in 1995, the year before Proposition 215, to 60 percent late last year.

All of this has occurred with varying degrees of forbearance on the part of the federal government. The Clinton and Bush administrations pursued fairly aggressive policies toward dispensaries and even patients in medical marijuana states, and the Obama administration continued the trend. Then, in 2013, the Obama DOJ issued the Cole memo, which instructed federal authorities to lay off those who were in compliance with state law. This relative détente has held up to the present. In fact, this approach of ad hoc federalism enjoys solid public support. A Quinnipiac poll from February found 71 percent of Americans opposed federal enforcement of prohibition in states that have legalized, and even among Republicans that figure stood at 55 percent to 36 percent against.

Of course, this shift from the long-dominant prohibitionist orthodoxy hasn’t been without controversy. In 2011, just after legalization passed in Colorado and Washington, Hillary Clinton maintained that there was “too much money” in black market marijuana for it to be legalized, and Ed Feulner, former president of the Heritage Foundation and member of Trump’s transition team, just this past fall called for a re-declaration of the War on Drugs, explicitly including marijuana. In that piece he singled out data from Colorado showing increases in “marijuana related” emergency room visits and hospitalizations, as well as “pot-positive” traffic fatalities. However, as detailed in a report by the Colorado Department of Public Safety in March 2016, the data don’t lead so readily to alarmist conclusions. In fact, Colorado’s own governor, John Hickenlooper, has gone from musing about undoing legalization if only he had a magic wand to guarded optimism.

Despite the ominous statements from administration officials, Trump himself apparently struck a more accommodating tone in a meeting with state governors in late February. Even though he made no explicit mention of marijuana, he signaled a willingness to let states pursue their own policies without fear of federal interference. Given the impossibility of policing a combined population of 70 million in the states that have legalized with the roughly 5,000 special agents of the DEA, it would seem like an easy call for the administration to prioritize investigations of otherwise violent traffickers over hounding commercial growers and retailers complying with state law. Furthermore, letting legalization run its course in the states might be one of the best ways to undercut the black market. In an NPR report from 2014, one Mexican grower they interviewed reported that the wholesale price per kilo had fallen by more than half, and, per the Washington Post, overall seizures at the border had fallen from 4 million pounds in 2009 to 1.5 million in 2015.

The current disconnect between federal marijuana policy and the ongoing reforms at the state level is untenable. Rather than revert to the tried and failed prohibitionist approach, it’s time for Congress to codify the current ad hoc federalism of Obama’s second term and give the states and their burgeoning marijuana industries the breathing room they need. In so doing, they will sap the strength of the cartels, create jobs, and allow law enforcement to turn its attention to more important work.

Dan Spragens is a criminal justice reform intern at Reason Foundation.

Recreational Marijuana: What Prop. 64 Will Actually Mean in California

California voters on November 8 approved Prop. 64, which is an initiative statute that legalizes marijuana and hemp under state law, with specified limitations. The ballot measure designates state agencies to license and regulate the recreational marijuana industry and it imposes a state excise tax on retail sales of marijuana equal to 15 percent of the sales price, as well as state cultivation taxes on marijuana of $9.25 per ounce of flowers and $2.75 per ounce of leaves.

In addition, Prop. 64 exempts medical marijuana from some taxation and establishes packaging, labeling, advertising and marketing standards and restrictions for marijuana products. The ballot measure allows local regulation and taxation of marijuana. Additionally, Prop. 64 prohibits marketing and advertising marijuana to minors and it authorizes resentencing and destruction of records for prior marijuana convictions under specified circumstances.

According to the fiscal estimate prepared by the Legislative Analyst and Director of Finance, the enactment of Prop. 64 will result in “net reduced costs ranging from tens of millions of dollars to potentially exceeding $100 million annually to state and local governments related to enforcing certain marijuana-related offenses, handling the related criminal cases in the court system, and incarcerating and supervising certain marijuana offenders.

“Net additional state and local tax revenues potentially ranging from the high hundreds of millions of dollars to over $1 billion annually related to the production and sale of marijuana. Most of these funds would be required to be spent for specific purposes such as substance use disorder education, prevention and treatment.”

According to the official ballot arguments, a YES vote on this measure meant: “Adults 21 years of age or older could legally grow, possess and use marijuana for nonmedical purposes, with certain restrictions. The state would regulate nonmedical marijuana businesses and tax the growing and selling of medical and nonmedical marijuana. Most of the revenue from such taxes would support youth programs, environmental protection, and law enforcement.

“Prop. 64 creates a safe, legal system for adult use of marijuana. It controls, regulates and taxes marijuana use, and has the nation’s strictest protections for children. It provides billions for afterschool programs, job training, drug treatment, and cracking down on impaired driving. Fix our approach to marijuana.”

A NO vote on this measure meant: “Growing, possessing or using marijuana for nonmedical purposes would remain illegal. It would still be legal to grow, possess or use marijuana for medical purposes.

“Proposition 64 purposely omits a DUI standard to keep marijuana-impaired drivers off our highways. California Association of Highway Patrolmen and Senator Dianne Feinstein strenuously oppose. Legalizes ads promoting smoking marijuana, Gummy candy and brownies on shows watched by millions of children and teens. Shows reckless disregard for child health and safety.”

According to a summary prepared by the independent Legislative Analyst Office, marijuana is generally illegal under existing state law – either to possess it or use it. In 1996, voters approved Proposition 215, which made it legal under state law for individuals of any age to use marijuana in California for certain medical purposes. Individuals must have a recommendation from a doctor to use medical marijuana.

In 2003, the Legislature legalized medical marijuana collectives, which are nonprofit organizations that grow and provide marijuana to their members. As a result of 2015 legislation passed by the Legislature, the state is currently adopting new medical cannabis regulations. Local governments will continue to have the ability to regulate where and how medical marijuana businesses operate in this state.

The LAO notes that, under federal law, it is illegal to possess or use marijuana, including for medical use. The U.S. Supreme Court ruled in 2005 that federal agencies could continue under federal law to prosecute individuals who possess or use marijuana for medical purposes even if legal under a state’s law.

Currently, however, the U.S. Department of Justice chooses not to prosecute most marijuana users and businesses that follow state and local marijuana laws if those laws are consistent with federal priorities. These priorities include preventing minors from using marijuana and preventing marijuana from being taken to other states. More than half a dozen requirements must be met under the DOJ’s “Cole Memo.”

In addition to California, voters in Arizona, Nevada, Maine and Massachusetts also passed ballot measures to legalize recreational use of marijuana. Colorado, Washington, Oregon and Alaska currently allow its limited use. Medical marijuana was also on the ballot in four states this year.

Due to the voters’ enactment of Prop. 64, California now (1) legalizes adult nonmedical use of marijuana, (2) creates a system for regulating nonmedical marijuana businesses, (3) imposes taxes on marijuana, and (4) changes penalties for marijuana-related crimes.

Specifically, Prop. 64 changes state law to legalize the use of marijuana for nonmedical purposes by adults age 21 and over. As a result, adults age 21 and over will be able to purchase marijuana at state-licensed businesses or through their delivery services (effective January 1, 2018). Businesses can generally not be located within 600 feet of a school, day care center, or youth center, unless allowed by a local government. Proponents claim that marijuana will have limited access and that these are the strongest protections for youth of any other states’ measures.

In addition, Prop. 64 changes the name of the Bureau of Medical Cannabis Regulation to the Bureau of Marijuana Control and makes the Bureau responsible for regulating and licensing nonmedical marijuana businesses (it is obviously already handling the regulation of medical cannabis in this state). In addition, the ballot measure requires other state agencies to regulate and license different parts of the nonmedical marijuana industry (including Department of Food & Agriculture and the Department of Public Health). These state agencies will have responsibilities similar to the ones they currently have for medical marijuana.

Under the ballot measure, cities and counties can regulate nonmedical marijuana businesses. For example, cities and counties can require nonmedical marijuana businesses to obtain local licenses and restrict where they could be located. Cities and counties can also completely ban marijuana-related businesses. However, they cannot ban the transportation of marijuana through their jurisdictions.

The ballot measure imposes new state taxes on growing and selling both medical and nonmedical marijuana. The new tax on growing marijuana will be based on a dollar amount per ounce of marijuana, and the new excise tax will be based on the retail price of marijuana products sold.

The measure will also affect sales tax revenue to the state and local governments.

After initial spending, revenues will be allocated as follows:

  • 60 percent for youth programs — including substance use disorder education, prevention and treatment.
  • 20 percent to clean up and prevent environmental damage resulting from the illegal growing of marijuana.
  • 20 percent for (1) programs designed to reduce driving under the influence of alcohol, marijuana and other drugs and (2) a grant program designed to reduce any potential negative impacts on public health or safety resulting from the measure.

In addition, Prop. 64 imposes packaging and labeling requirements so that all marijuana sales will include a standard warning label. These cannot be targeted towards children and packages must be child-proof. While Prop. 64 allows for the advertisement of marijuana-related products, it cannot be targeted toward children.

Prop. 64 also changes state marijuana penalties. And, under the ballot measure, individuals serving sentences for activities that are made legal or are subject to lesser penalties under the measure will be eligible for resentencing.

According to the proponents, “Proposition 64 finally creates a safe, legal, and comprehensive system for adult use of marijuana while protecting our children. Marijuana is available nearly everywhere in California — but without any protections for children, without assurances of product safety, and without generating tax revenue for the state.

“Prop. 64 controls, regulates and taxes adult use of marijuana, and ends California’s criminalization of responsible adult use. How Prop. 64 Works:

  • “Under this law, adults 21+ will be allowed to possess small amounts of nonmedical marijuana, and to grow small amounts at home for personal use. Sale of nonmedical marijuana will be legal only at highly regulated, licensed marijuana businesses, and only adults 21+ will be permitted to enter. Bars will not sell marijuana, nor will liquor stores or grocery stores.

“Child Protections:

  • Drug dealers don’t ask for proof of age and today can sell marijuana laced with dangerous drugs and chemicals. 64 includes toughest-in-the-nation protections for children, requiring purchasers to be 21, banning advertising directed to children, and requiring clear labeling and independent product testing to ensure safety. 64 prohibits marijuana businesses next to schools.”

On the other hand, opponents of Prop. 64 argued the following: “Flaw #1: Doubling of highway fatalities. Flaw #2: Allows marijuana growing near schools and parks. Flaw #3: Will increase, not decrease black market and drug cartel activity. Flaw #4: Could roll back the total prohibition of smoking ads on TV. Flaw #5: Proposition 64 is an all-out assault on underprivileged neighborhoods already reeling from alcohol and drug addiction problems.”

Prop. 64 as a practical matter allows adults aged 21 or older to buy, possess or transport small amounts of marijuana for personal use. They can also cultivate up to six plants as long as it is not visible to the public. They cannot sell it. The ballot measure also provides extensive state licensing schemes based upon the work currently being done by a number of state agencies that are charged with implementing the medical cannabis laws. The ballot measure establishes standards for marijuana products and it allows local government to regulate and tax marijuana.

Major concerns from opponents of marijuana legalization have focused on the advertising restrictions and whether enough will be done to protect children; the failure to include a DUI standard (Prop. 64 provides funding to the California Highway Patrol to undertake the determination of this standard); and whether so called “on-demand delivery” will be permitted (which the proponents claim is prohibited).

As a result of the enactment of Prop. 64, state agencies will be tasked with creating a regulatory program for both medical and recreational cannabis usage in this state. Local jurisdictions will have to decide whether they want marijuana-related activities to be sanctioned within their jurisdictions considering the societal and revenue impacts of the products. And the state may be looking at $1 billion annually in new state revenues as a result of Prop. 64.

Chris Micheli is an attorney and legislative advocate with the Sacramento governmental relations firm of Aprea & Micheli. He can be reached at (916) 448-3075.

State Legislatures Consider Medical Marijuana

Marijuana cartoon

For marijuana in California, line between legal and illegal gets hazy

SONY DSC

California’s medical marijuana industry may soon be craving pain relief instead of selling it.

The state Legislature recently passed the Medical Marijuana Regulation and Safety Act, a combination of three laws that together will impose a massive, multi-agency regulatory framework on the cultivation, distribution and sale of cannabis.

Nate Bradley, executive director of the California Cannabis Industry Association, said his group lobbied Sacramento for “sensible regulations.” In a panel discussion presented by the Republican Liberty Caucus of California at the recent state GOP convention, Bradley said he tells his members it’s better than “having your doors kicked in.”

The new laws abolish collectives and cooperatives. Instead there will be state licenses for commercial growers, distributors and sellers, and additional licenses required in cities and counties that choose to be “wet” jurisdictions instead of “dry.”

The Wild West days are over. From now on, the medical marijuana industry will have to answer to the Department of Fish and Wildlife, the State Water Resources Control Board, the Department of Food and Agriculture, the Board of Equalization, the Department of Public Health, the Department of Consumer Affairs, Cal OSHA, the Department of Pesticide Regulation and the new chief of the Bureau of Medical Marijuana Regulation.

Growers will be assessed fees and fines for any impact on streams, rivers, lakes, fish or wildlife. They’ll be required to label each plant with a government-assigned “unique identifier,” part of a “track and trace” program that follows every product from seed to sale.

Weighing and measuring devices will be strictly regulated. Facilities will be required to have adequate security systems to prevent theft. New tax reporting requirements will log the movement of commercial cannabis and cannabis products through the distribution chain, capturing names, addresses, license numbers, transaction dates and taxes due.

There will be new regulations for production and labeling, pesticide standards, requirements for inspections, batch testing and tamper-evident packaging, workplace safety standards, and enforcement measures against doctors who engage in “excessive recommending.”

And unions have entered the picture. Licensed facilities with more than 20 employees will be required to enter into a “labor peace agreement” and all growers are required to use a “licensed transporter” to get their products to the market.

All government departments may charge fees to cover the cost of implementing the new regulations, and that’s on top of license fees and taxes.

Welcome to California.

The new laws have complicated plans for a 2016 ballot initiative to legalize marijuana completely. Dale Gieringer, director of the California chapter of the National Organization for the Reform of Marijuana Laws, said two teams of lawyers are working on drafting the language for the initiative, which now has to be written “over” the new medical marijuana regulations.

But the regulations may not survive in court. A lawsuit announced by the American Medical Marijuana Association says the new laws illegally modify Proposition 215, the voter initiative which legalized medical marijuana in 1996.

Making the situation even more tangled, marijuana remains illegal under federal law. That means a licensed California business can comply with environmental and health regulations, safety and packaging rules, union contracts, tax collections, and laws against marketing to children — and still have the doors kicked in by federal agents.

Here’s a prediction: This story ends with a thriving, statewide, tax-free, illegal drug trade.

Or, as the Sundance Kid said to Butch Cassidy, “Well, we’ve gone straight. What do we try now?”

Plan to regulate medical marijuana heads to Jerry Brown

As reported by the Sacramento Bee:

After years of false starts and nearly two decades after California legalized cannabis for medical purposes, lawmakers Friday sent Gov. Jerry Brown a legislative package to regulate the billion-dollar industry.

Medical marijuana would be newly defined as an agricultural product with rules for water use, discharge and pesticides, and would be tracked and tested through the process.

The trio of bills would allow for testing and labeling of edible marijuana, overseen by the Department of Public Health, and prevent environmental degradation like water diversion via the Department of Food and Agriculture, which would also manage cultivation.

Click here to read the full story

Feds vow continued pot prosecutions in CA

Over the strenuous objections of some California lawmakers, the Department of Justice vowed to continue prosecuting the medical marijuana industry in the Golden State.

Despite a recent bipartisan federal amendment de-funding the Department’s fight against medical marijuana, spokesman Patrick Rodenbush revealedto the Los Angeles Times that “it did not believe the amendment applies to cases against individuals or organizations.”

“Consistent with the Department’s stated enforcement priorities, we don’t expect that the amendment will impact our ability to prosecute private individuals or private entities who are violating the Controlled Substances Act.”

The interpretation put the DOJ squarely at odds with the amendment’s co-sponsors, Reps. Dana Rohrabacher, R-Calif., and Sam Farr, D-Calif. Rohrabacher spokesman Ken Grubbs said his boss “believes the amendment’s language is perfectly clear and that the DOJ’s self-referential interpretation is emphatically wrong.”

Farr echoed the comments. “The Justice Department’s interpretation of the amendment defies logic,” he said, according to the Huffington Post. “No reasonable person thinks prosecuting patients doesn’t interfere with a state’s medical marijuana laws. Lawyers can try to mince words but Congress was clear: Stop going after patients and dispensaries.”

Fueling the fire

The developments have heightened the controversy surrounding California’s efforts to gradually reform its marijuana laws to better reflect the reality of steadily increasing usage and rapidly changing mores. Despite growing public support for legalization and taxation, policymakers have faced sharp challenges in reconciling the pre-existing pot industry with the intended uniformity that regulation would bring.

Marijuana farming alone has raised the specter of awkward tradeoffs for liberal state Democrats, many of whom support both pot legalization and increased environmental regulation. As Jefferson Public Radio most recently observed, California pot farming has adversely affected both the state’s drought and its wildlife. “What we found is that in four of the streams that had marijuana cultivation, those four streams went dry. And the only stream that we monitored that did not go dry was free of marijuana cultivation,” said Scott Bauer, a California Fish and Wildlife biologist who lead-authored a new study showing the impact of pot on the “Emerald Triangle” of pot production in Humboldt and Mendocino counties.

Although the lion’s share of water consumption continued to run through the state’s large agricultural companies, officials have recognized that California produce holds a far more important and legitimate place in the state and national economy than California marijuana.

In the hopes of squaring the policy circle on related issues, Gov. Jerry Brown’s administration formed a Blue Ribbon Commission on Marijuana Policy, placing Lt. Gov. Gavin Newsom at the head. At the end of March, the commission released its first progress report, sketching out an effort to balance safety and reform across areas including children, taxes and regulations.

Money measures

According to the Huffington Post, the commission took an uncertain approach to taxes — one that Lt. Gov. Newsom reiterated in an interview. Pot taxes, the report noted, “can result in greater state and local revenue, increasing the revenue available to do the work of government,” whereas “with a high tax, both sellers and buyers may opt out of the legal market in order to avoid paying the tax and continue to access marijuana through the illicit market.”

The perils of pot taxation have been on display recently in Colorado. There, revenue has been so high that, by law, a cut of the income must be returned to residents themselves. But, as High Times reported, confusion has set in statewide. Legislators haven’t figured out whether the money should go to pot purchasers or all residents. Republicans, typically in favor of rebates, have wound up opposed. Even pot producers, who supported the taxes to begin with, haven’t decided how to come down on the giveback. California lawmakers haven’t painted themselves into the same regulatory corner as Coloradans. But with federal pressure ongoing, Californians have begun to recognize that they’ll be on their own in determining how to liberalize pot laws without adverse consequences.

Originally published by CalWatchdog.com