The Marijuana Compromise

We’ve finally reached agreement on a marijuana bill.  I hope that most voters will feel that the language improves on what the majority approved last November while fundamentally respecting the majority’s intentions.

First, to highlight some things that the compromise bill does not do:

• No reduction in the freedom to possess marijuana  – in fact, it increases the amounts permitted without criminal sanction for persons under 21.
• No reduction in the freedom to grow marijuana within a home. — in fact in it eliminates criminal liability for home grow by persons under 21.
• No change to the basic structure of the law approved by the voters last November.  The approach is to amend, rather than to repeal and replace.
• No new regulatory agency – the basic regulatory entities created by the voters are preserved and there is no major expansion of the powers of those agencies, although their independence is increased and their powers are more fully and explicitly defined.
• No change to the basic principle that the voters of each community, as opposed to the elected officials of each community, get to decide whether marijuana establishments will be able to operate in the community.

As to local voter approval, the compromise does provide that if a community voted against the ballot question last November and local officials want to implement the expressed will of their community by imposing a ban on marijuana establishments, they can do so between now and 2019 without going to the voters a second time.  This affects 91 communities comprising 28% of state’s population.

Second, to highlight the major things the compromise bill does do:

As to regulatory structure and scope,

• Broadens the governance of the new state regulatory agency, the Cannabis Control Commission, by dividing the appointing authority among the state’s top elected officials.
• Fills out “boilerplate” powers, duties and procedures for the CCC that were absent in the ballot question language.
• Strengthens public health protections – the ballot language gave the CCC the authority to regulate advertising, packaging and labelling and to require purity testing, but the compromise bill provides much stronger and more specific direction to the CCC.
• Defines research questions to be answered by the CCC in the course of implementation.
• Consolidates the regulation of adult recreational marijuana and medical marijuana under the single new authority, moves the medical marijuana language approved by the voters in 2012 to a new statutory home as Chapter 94I, while preserving the approved language and regulations issued under it.  Previously, this language was not properly codified.  There are a few minor changes, mostly to clarify and streamline procedures for patients.

As to local control,

• Clarifies procedures for local ballot questions limiting the number of marijuana establishments and adds new language to assure that zoning and other regulations will not be used to evade the requirement of voter approval for numeric limits.
• Caps the fees that municipalities can charge prospective licensees at 3% of gross sales – the ballot question included no cap.

As to criminal liability,

• Makes certain possessory offenses civil that remained criminal under the ballot question
• Adds language assuring that people with prior convictions for possession under the old laws can have their records sealed.
• Add language intended to direct benefits of the new law to communities that were impacted by enforcement under the old law.

Other measures,

• Adds language authorizing full background checks for commission employees and applicants for licenses, but does not alter the ballot question language stating that a drug possession offense should not bar licensure or employment in a marijuana establishment.
• Reduces the head start in the application process for adult recreational store licenses that the ballot question gives to medical marijuana licensees – this should move the market out more rapidly.
• Creates a new provision for cultivation of industrial hemp and also supports small growers through a new cooperative concept.
• Bars the use of welfare payments to purchase marijuana or for any purpose in a marijuana establishment
• Limits licenses to be held to 3 of each type.

Finally, the compromise does increase the excise tax on marijuana from 3.75% to 10.75%.  It also bumps up the excise that municipalities may add from 2% to 3%.  So together with the state sales tax of 6.25%, the maximum tax goes from 12% to 20%.

That total tax still appears to be among the lowest in the nation and should not, in itself, be a barrier to expansion of the legal market.  I came to peace with the tax increase when it dawned on me that it would give both state and local regulators stronger incentives to actively support expansion.

The compromise reached by negotiators from the House and Senate is subject to final approval in each branch later this week.

I’m hopeful that with these changes, we will be on our way to a well-regulated market in marijuana products that will replace our dangerous and destructive illegal market.

FAQ links:

• What changes as to Marijuana possession?
• What changes as to home cultivation?
• How does the regulatory structure change?
• How do the regulators’ powers change?
• How does local officials’ authority change?
• What about people with criminal records?
• What about communities historically impacted by drug enforcement?
• How does the compromise affect medical marijauna?
• How does our tax structure compare to other states?