marijuana cannabis oregon initiative
The goal of your ballot initiative is to get to a vote.

Oregon successfully legalized the use, sale, processing, and production of recreational marijuana in 2014 through the initiative process. The initiative process is a method of direct democracy that allows people to propose laws outside of the normal legislative process. Oregon’s marijuana statute (ORS 475B) allows cities and counties to “opt-out” of commercial recreational marijuana. In other words, cities and counties do not have to allow for the sale, processing, or producing of marijuana within their jurisdictional borders. ORS 475B, as originally written, allowed cities and counties to automatically opt-out if registered voters in the jurisdiction voted at least 55% against the legalization. All other cities or counties could either create reasonable time, place, and manner restrictions for marijuana businesses or could put up an opt-out vote to the public at the next general election.

Many cities and counties chose to opt-out from legalized recreational marijuana. In these jurisdictions, citizens can still use and possess marijuana, but licensed recreational businesses are not allowed to operate in jurisdictions that opted-out. Still, citizens can use the initiative process to change these local laws. The initiative process allows for citizens to propose a city or county ordinance allowing Oregon Liquor Control Commission (OLCC) licensed marijuana businesses within the jurisdiction. We have expertise in navigating this process and we are, in fact, running one initiative in an “opt out” jurisdiction right now.

The initiative process, much like many forms of our government, is overly complicated with a host of rules and technical requirements. It requires a lot of steps, careful planning, patience, and organization. Once an entrepreneur decides he or she wants to change the laws, the initiative process starts by filing a prospective petition with the local elections official. The prospective petition includes the language of the proposed ordinance. The language is an opportunity to develop a local ordinance that fulfills your goals and the citizens goals for licensed marijuana businesses.

After the prospective petition is submitted, the city or county will approve it for circulation. This is when the real work starts. Initiative petitions are not automatically guaranteed a spot on the ballot. Instead, initiative petitions must gather the support of the public to be included on the next election’s ballot. Almost all of us have been accosted by a circulator on the MAX or downtown in Portland asking if we are a registered voter and if we’ll sign the petition sheet to get a measure on the ballot. City initiative petitions require valid signatures from 15% of the registered voters in the city and County initiative petitions require 8% of registered voters.

If the local elections official determines enough valid signatures were received, the initiative will be referred to the local governing body. The local governing body has the option to adopt the petition without sending it to the ballot. They can also choose to allow the petition to be voted on in the next election. If it makes it onto the ballot, the initiative must receive a majority of approval from the voters to pass. If it receives a majority of votes, the initiative will be enacted as law.

Initiative petitions are one way to attempt to change local laws surrounding marijuana businesses. These petitions can be drafted in favor of their drafters, who may attempt to set themselves up for success once an initiative passes. Over the past few years, some citizens in Oregon have attempted and failed, while others have successfully changed local law to allow for recreational marijuana licensees. The process is long and complex, but the upside can be tremendous.

Tomorrow, June 5th, Californians will go to the polls and vote on a number of state and local races, along with tax measures and other proposed laws. Cannabis will play a large role in many of them.

In the gubernatorial primary race the two favorites, Lt. Governor Gavin Newsom and former Los Angeles Mayor Antonio Villaraigosa, are both Democrats and they both support the cannabis industry and social justice reforms to right the drug wars’ wrongs. California Treasurer John Chiang is also running for governor and he has made increasing banking opportunities (which we covered here) for cannabis businesses one of his most pressing goals. Even if Mr. Chiang doesn’t win, we hope he continues making progress on this front as lack of access to banking severely hampers cannabis business owners and needlessly creates a danger to public safety. The Republican candidates for governor, John Cox and Travis Allen, hold the same traditional shortsighted and draconian Republican position: cannabis is bad, lock everyone up. To quote the current eloquent speaker in the White House: SAD! Although both Republican candidates are longshots to make the statewide election in November, one of them could get lucky if the Democratic favorites split a large number of votes. That’s because California has an open primary system with the top two vote getters, regardless of party affiliation, moving on to the November election.

Keep the momentum going, California!

Making sure the top two gubernatorial candidates support the cannabis industry and social justice reforms is extremely important but there also a number of other races and measures to keep an eye on tomorrow:

  • Republican Congressman Dana Rohrabacher faces what looks like a tough race as he’s being challenged by a Republican and a Democrat. Mr. Rohrabacher is one of the biggest Republican supporters of the cannabis industry (If you’ve never heard of the Rohrabacher-Blumenaur amendment, we covered that for you here.) The best-case scenario is that Mr. Rohrabacher and one of the Democratic candidates receive the most votes. Worst-case scenario is that Mr. Rohrabacher and the other Republican candidate, Scott Baugh, move on the November election and Mr. Baugh wins. Mr. Baugh has chastised Mr. Rohrabacher’s support of the cannabis industry, so a Baugh-Blumenaur collaboration is highly unlikely.
  • Residents of the Southern California City of Jurupa Valley will vote on whether to allow commercial cannabis activities in certain commercial zones.
  • Ballot Measure CC in the City of Pasadena would authorize up to six retailers, four cultivators, and four testing laboratories to operate in the City. There will also be a cannabis tax measure on the ballot.
  • The City of San Rafael, which we recently covered in our California Cannabis Countdown series, will also place a tax measure on its ballot. Measure G would authorize the City to tax cannabis business up to 8%.
  • There’s also a tax measure on the County of Santa Barbara’s ballot, however Measure T’s passage carries more than just tax consequences – if Measure T fails then the cannabis ordinance passed by the Board of Supervisors that would allow commercial cannabis activities will not go into effect.
  • The County of San Luis Obispo will also put forth a tax measure on its ballot and just as in Santa Barbary County, if the tax measure doesn’t pass then commercial cannabis businesses will not be able to operate in SLO County.
  • Yolo County is proposing a tax measure that would place an initial four percent (4%) cultivation tax and an initial five percent (5%) tax on all other cannabis businesses.

There are other marijuana related measures that will be on ballots throughout California this Tuesday and it’s extremely important for current cannabis business owners, future entrepreneurs, and cannabis industry supporters to pay close attention to the language of the ballot measures–especially tax measures tied to the enactment of cannabis ordinances–and the cannabis positions on those running for elected office. The cannabis industry has made great strides recently and now is not the time to let up. Get out there on Tuesday and vote!

Last week I wrote about how the United States is close to approaching the tipping point when it comes to ending the federal government’s prohibition on cannabis. Legalization is long overdue. And just this week, U.S. Attorney General Jeff Sessions, while testifying before the U.S. Senate, surprisingly said that cannabis should be researched and that there may be some benefits to medical marijuana. We’ll take a lukewarm comment from the man that said “good people don’t smoke marijuana” and take that to the bank. Which brings me to the topic of today’s post, banking (a transition as smooth as my middle school dance moves).

california cannabis banking
Will California clear a way for banking?

It’s no secret that many cannabis operators have to operate as cash only businesses since many financial institutions still refuse to offer banking services to the cannabis sector (which has led to an increase in interest in cryptocurrencies). In California, many banking institutions that were considering openly banking cannabis businesses decided to remain on the sidelines once A.G. Sessions rescinded the Cole Memo this January. However, like the slow but forceful gravitational pull of the moon, we’re starting to see tide shift towards more banking opportunities on the horizon.

Part of the shift has to do with fact that the cannabis licensing agencies in California (the Bureau of Cannabis Control, the Department of Food and Agriculture, and the Department of Public Health) will start issuing annual licenses in May. To date, all of these agencies have only issued temporary permits, which required little more than a local permit, a location, and a premises diagram. The application for an annual license requires much greater detail. Although some applicants may balk at the amount of information they must provide, the fact intensive nature of the application process will undoubtedly help cannabis operators obtain banking services. A cannabis business owner that has received an annual permit from the state, can use that permit as a stamp of approval when walking into a bank to open an account. Possession of an annual license will signify to banks that you’ve passed a background investigation and proven to the state that you have the procedures in place to run a compliant cannabis business. Don’t lose sight of that fact as you’re cursing all the hoops you’re jumping through.

Another step in the right direction when it comes to opening banking services to the cannabis industry is the progress of Senate Bill 930 in the California state legislature. SB 930 was first introduced by State Sen. Robert Hertzberg (D-Van Nuys) on January 25, 2018, and was approved by the Governance and Finance Committee last Wednesday. SB 930 would provide for the licensure and regulation of cannabis limited charter banks and credit unions whose sole purpose would be to provide banking services to the cannabis industry. SB 930 is more workable and has a stronger likelihood of success than the prospect of a state backed bank, which we last discussed here.

In order for SB 930 to be successful, it is paramount that the FinCEN guidance issued by the Department of Treasury remain in place (see here for the importance of the FinCEN guidance). The bill would also create the Cannabis Limited Charter Advisory Board (“Board”) that would hold public hearings, submit reports of enforcement activities, and provide guidance on specified investment activities. The Board will be comprised of the state Treasurer (you can find our analysis of the Treasurer’s banking report, here), the state Controller, and Chief of the Bureau of Cannabis Control. SB 930 would also authorize charter banks and credit unions to issue special purpose checks for the following:

  • To pay fees or taxes to the state or local jurisdiction;
  • To pay rent on property that is associated with the account holder’s cannabis business; and
  • To pay a vendor that is located in California for expenses related to goods and services associated with the account holder’s cannabis business.

SB 930 will still have to clear some procedural hurdles before it’s in front of the full Senate for a vote, but this is definitely another step in the right direction to ease the logistical burden – and enormous public safety concern – that dealing in all cash poses on cannabis businesses. SB 930 is yet another piece in the fight against the federal government’s unjust war on cannabis. Eventually the final blow will have to come from the federal government, but in the interim California, along with many other states, will continue to lead the way.

sonoma california cannabis
Will Sonoma stay green?

In 1996 Californians voted for the Compassionate Use Act (aka Prop 215), but more than twenty years later Californians are still fighting for their cannabis rights. One of the biggest misconceptions out there is that the entire state of California is open to cannabis businesses. Our San Francisco and Los Angeles offices field calls from new clients every week looking to start a cannabis business but on many occasions, I have to crush their business plans before they can even get started. It’s not that their business plan isn’t sound, it’s that their business is prohibited in the city or county where they wish to operate.

These bans exist because the Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA) explicitly authorizes local jurisdictions to regulate (or outright prohibit) as they see fit. This authority granted to local jurisdictions is just one of the reasons why commercial cannabis licensing has gotten off to a rocky start. After I tell the client that they can’t operate in Butte County, for example, the next question I usually get is “where can I operate?” If you’re a reader of our California Cannabis Countdown series, you’ll know that cannabis friendly jurisdictions do exist, but whether these locales will always remain open to cannabis is another question. There’s an unfortunate trend occurring throughout the state where local jurisdictions are passing laws authorizing commercial cannabis activities only to later change their minds. This brings me to Sonoma County.

Sonoma County would fall into the category of a cannabis friendly jurisdiction, as the County authorizes all seed to sale license types (for medical cannabis businesses anyway). However, recent events have put the County’s cannabis friendly tag in serious peril. There have been a number of high profile robberies (one of which was sadly fatal) of alleged cultivation grow houses, and cannabis opponents have been highlighting these robberies to press the County to make restrictive changes to its cannabis ordinance. The fact that the perpetrators were from out of state and came with the specific goal of targeting grow houses is also being used to further stoke fears. What the prohibitionists are not mentioning is that the houses that were targeted were not legally licensed cultivators, but instead were selected because they were suspected of being illegal grow houses. Licensed operators have security plans and security protocols, whereas illegal operators do not. This push to restrict cannabis activities in Sonoma is misguided as it will strengthen the black market and thereby increase crime. This small but vocal group of cannabis opponents have approached the Board of Supervisors and requested that the County:

  • Freeze issuing any cannabis permits until the County’s ordinance is amended;
  • Authorize only indoor cultivation, and ban all outdoor cultivation;
  • Restrict cultivation to only industrial zoned areas;
  • Place a cap on the number of cultivation permits based on the amount of cannabis necessary to supply only County residents;
  • Disband the Cannabis Advisory Group; and
  • Make these changes retroactive to apply to existing permit applicants.

If this vocal group of opponents is able to persuade the County’s Board of Supervisors to change the County’s cannabis ordinance to include these restrictive changes, the effect on operators who have spent extensive time and capital to abide by the law will be disastrous. Only those that have never been interested in complying will have benefited.

We’ve spoken at length about the importance of showing up to your local hearings and public support is needed now in Sonoma County now more than ever. We don’t want Sonoma to end up like Calaveras County. The Board of Supervisors are meeting this Tuesday at 1:30pm and the Sonoma County Growers Alliance is requesting that supporters come dressed in green. I hope to see you there wearing your St. Patrick’s Day best.

virginia, new jersey, oklahoma, michigan marijuana

Last week, we were pleased to cover Vermont’s big move to legalize cannabis state-wide, effective July 1. The Vermont effort was impressive for a couple of reasons: 1) it became the first state to legalize adult-use (recreational) cannabis through the legislature; 2) its cannabis bill passed just days after Jeff Sessions announced Department of Justice rescission of the Cole Memorandum; and 3) Vermont is an east coast state, contiguous to populous New York and freewheeling New Hampshire. (The latter state also has been looking hard at adult use cannabis.)

With 2018 not long underway, it is likely that we will see at least a few other states break away from prohibition and adopt some form of cannabis legalization this year. Today, we identify four states with the best opportunities to make some noise, notwithstanding Attorney General Jeff Sessions’s feckless attempts to formally resuscitate the failing war on drugs. These four states would add to the nine with approved recreational use programs, and the 28 with medical cannabis programs.

Before we dive in, it is important to note that 26 states offer initiative and/or veto referendum rights to their citizens. If a state is not on this list, the odds of cannabis legalization are probably longer in that jurisdiction. This is because state legislators outside of Vermont have typically been non-forward-thinking when it comes to cannabis. A recent example would be California, where it was long apparent that adult use cannabis would become a reality, but the state legislature could not or would not summon the courage take up the issue, leaving it to the initiative process.

Without further ado, here are the four states most likely to make a run at ending prohibition this year.

New Jersey

New Jersey would be a great state to roll, if only because it was Chris Christie territory until recently, and Christie may be the one public official more ridiculous about cannabis than Jeff Sessions. With Christie now gone, though, Governor Phil Murphy has promised to sign any reasonable legalization bill that makes it to his desk, including for recreational weed. New Jersey does not allow its citizens to bring direct initiatives, so legalization will have to come through the legislature, as with Vermont. Currently, a couple of bills are in the works and optimism is high that full access adult-use legalization will pass this year.

Oklahoma

Oklahoma and cannabis is an interesting story. Not long ago, Oklahoma teamed up with Nebraska to sue Colorado in an effort to shut down its neighbor state’s adult use program. That effort fizzled, and now Oklahomans are set to vote June 26 on a qualified referendum to legalize medical cannabis use. In a fun twist, the date was fixed just hours after Sessions announced the change in Department of Justice policy as to cannabis.

Oklahoma’s ballot initiative is known as State Question 788, and it would allow the use, cultivation and distribution of medical cannabis to qualified patients. The initiative’s writers are off to a good start: they already defeated an effort by the state attorney general to re-word the ballot title in an allegedly misleading manner. For a fuller explanation of that episode, and of how this particular initiative will work, go here.

Michigan

Michigan is another initiative state, and it appears to have enough signatures for adult-use program inclusion on the 2018 ballot. Michigan has had a medical use program in place for a decade, and appears to be the first Midwestern state ready to go all in on 21+. As of January 25, the initiative’s main committee had raised nearly $1.3 million from a variety of donors, and it appears likely to have obtained sufficient signatures to make it to ballot on November 6, 2018.

As to the details of the proposal, the Initiative seems modeled off of working programs in a few of the western states. Per Ballotpedia:

Individuals would be permitted to grow up to 12 marijuana plants in their residences. The measure would create an excise sales tax of 10 percent, which would be levied on marijuana sales at retailers and microbusinesses. The initiative would allocate revenue from the taxes to local governments, K-12 education, and the repair and maintenance of roads and bridges. The measure would also legalize the cultivation, processing, distribution, and sale of industrial hemp. Municipalities would be allowed to ban or limit marijuana establishments within their boundaries.

Virginia

Virginia is bringing up the rear on this list, as its efforts are focused on decriminalization and nothing more. Two proposed Senate bills contained fines for simple possession, but those were shot down yesterday by Senate Republicans. In their place, the same panel approved a cautious bill that lets first-time offenders for simple marijuana possession get their charges dismissed. The panel also voted in favor of legislation that would allow doctors to recommend CBD or THC-A oil to patients. We certainly applaud keeping people out of jail for cannabis use, and allowing doctors to recommend cannabis, but Virginia could do better.

As most everyone now knows California’s statewide licensing and regulatory regime for medical and adult-use cannabis businesses took effect on January 1st of this year. However what readers of our Canna Law Blog know is that every jurisdiction is free to decide whether to regulate or prohibit cannabis businesses within their border. It’s the state’s deference to cities and counties that make our California Cannabis Countdown series so popular. Not only are local jurisdictions regulating what types of cannabis businesses they’ll allow, but also WHO is eligible for a cannabis license.

california cannabis marijuana
Oakland and San Francisco are trying to even the balance.

In many of California’s major metropolises local legislators have made it a priority to enact social equity programs. The goal behind many of these social equity programs is clear: the war on drugs disproportionally affected communities of color and as a just society we need to right that wrong. In the Bay Area both Oakland and San Francisco have enacted legislation that stresses the importance of social equity programs.

We previously covered Oakland’s regulatory regime here but as a quick refresher Oakland’s ordinance requires that half of all cannabis businesses permits are issued to equity applicants. Oakland defines an equity applicant as an individual that:

  • Is an Oakland resident; and
  • Has an annual income at or less than 80% of Oakland’s average median income;
  • and either
  • Was arrested after November 05, 1996 and has a cannabis conviction in Oakland, or;
  • Has lived for 10 of the last 20 years in a number of police beats

After equity applicants, Oakland’s licensing regime gives priority to general applicants that are equity incubators. In order to serve as an equity incubator a general applicant must provide the following:

  • Providing free rent for a minimum of three years;
  • Provide a minimum of 1,000 square feet to the equity applicant; and
  • Provide the equity applicant with all required security measures.

Oakland has also realized that just providing priority processing to equity applicants alone is not enough to combat a history of disproportionate targeting of communities of color for criminal law enforcement. Oakland will also be hosting cannabis summits, orientations, and bootcamps for equity applicants. They’ve also created an online portal for equity applicants to connect with incubation partners.

San Francisco, like Oakland, has also created an equity program but has also taken the extra step by placing restrictions on who can apply for a cannabis business license. In 2018, San Francisco’s Office of Cannabis (“Office”) will only issue cannabis licenses to applicants that meet one of following criteria:

  • Qualify as an equity applicant or equity incubator;
  • Previously possess a valid medical dispensary permit under Article 33 of the Health Code;
  • Were issued a temporary cannabis business permit by the Office of Cannabis (which required you to register with the Office and show proof of operation prior to September 26, 2017);
  • Demonstrate compliance with the Compassion Use Act of 1996 (a/k/a Prop 215) and were shut down by federal prosecution or threat of federal prosecution;
  • Applied and received approval for a medical cannabis dispensary from the Planning Commission; or
  • Registered with the Office as pre-existing non-conforming operator.

On top of restricting the individuals that can obtain a license in 2018, San Francisco is placing an emphasis on social equity by granting equity applicants and equity incubators with priority processing in the permitting process. San Francisco’s equity applicant definition and incubator requirements differ from Oakland’s. In San Francisco an equity applicant is defined as someone that meets at least three of the following six conditions:

  • Meet certain household income limits (income limit varies depending on the number of people in your household);
  • Have been arrested from 1971 to 2016 for a cannabis offense;
  • Had a parent, sibling, or child arrested from 1971 to 2016 for a cannabis offense;
  • Lost housing in San Francisco after 1995 through eviction, foreclosure, or subsidy cancellation;
  • Attended school in the San Francisco Unified School District for a total of five years from 1971 to 2016; or
  • For a total of 5 years from 1971 to 2016, have lived in San Francisco census tracts where at least 17% of the households had incomes at or below the federal poverty level.

On top of those requirements there are also certain ownership interests and corporate positions that an equity applicant must hold in the cannabis business. If you want to operate a cannabis business in San Francisco in 2018 and don’t meet any of the criteria previously mentioned (prior operator or equity applicant) you’ll have to act as an equity incubator, which requires ALL of the following for three years:

  • Have local residents perform 30% of all work hours;
  • Have half your employees meet three of the six conditions for equity applicants; and
  • Provide a community investment plan with businesses and residents within 500 feet of your location.

And at least one of the following conditions:

  • Submit a plan to the Office of Cannabis for providing guidance to equity applicants running a new cannabis business; or
  • Provide an equity applicant with rent-free commercial space and use of security services for three years. The rent-free space has to equal or exceed 800 square feet or be at least 10% of the incubator’s space.

Both Oakland and San Francisco will be issuing progress reports on the status of their respective social equity programs and it will be interesting to see how many cannabis permits end up being issued. These are noble and necessary programs and we hope that they succeed. We’ll be sure to keep you posted.

Happy MLK Day!

For our international readers, Martin Luther King, Jr. Day is an American federal holiday marking the birthday of its eponymous civil rights hero. Dr. King was the chief spokesperson for nonviolent activism in the Civil Rights Movement, which successfully protested racial discrimination in federal and state law. Dr. King was assassinated in 1968, four years after the passage of one of the great U.S. laws of the 20th century, the Civil Rights Act of 1964. His death also came two years prior to one of the 20th century’s most controversial and insidious laws, the Federal Controlled Substances Act of 1970 (CSA).

mlk marijuana cannabis
Don’t forget that cannabis is a civil rights issue.

As cannabis business lawyers, we write about cannabis law topics every day of the year on this blog, but we seldom address pure social issues. When it comes to cannabis, however, it is sometimes difficult to separate law and policy. This is because the federal prohibition of marijuana in the United States has had a racially disparate impact on non-white individuals, especially black and Latino Americans. That should come as no surprise to anyone: It is well documented that former president Richard Nixon wanted to link marijuana use and its negative effects to African Americans and hippies, who he perceived to be his enemies, when he signed the CSA.

That was almost 50 years ago, but in a way, not much has changed. Although the Trump Administration has instated policies that make it more difficult to track drug arrests, publicly available FBI data reveals that 1,572,579 marijuana-related arrests occurred in 2016, comprising 42% of all reported U.S. drug arrests. This is 10,000 more marijuana arrests than were made in 2015. Thus, marijuana arrests are increasing, even as more states legalize possession and sale of the plant. It is profoundly regrettable that non-white individuals are arrested for marijuana crimes on a grossly disproportionate basis to whites, today and historically, despite lower levels of consumption overall. Most arrests are made for simple possession of small amounts of pot, and are made at the state and local level.

As far as federal enforcement and policy, both the Drug Enforcement Administration and the Federal Bureau of Investigation operate under the jurisdiction of the Department of Justice (DOJ), which is headed by Attorney General Jeff Sessions. Mr. Sessions has a long and well-documented history of fervent opposition to marijuana. Since his confirmation in January of 2017, Sessions has made various attempts to strengthen the hand of federal agencies in prosecution of marijuana-related crimes. Most of these attempts are either aggressively or latently anti-civil rights. These attempts include:

  • reversing a DOJ policy to combat draconian federal sentences for drug-related convictions (which affect blacks and Latinos disproportionately);
  • reversing a DOJ policy phasing out federal private prisons (which impound blacks and Latinos disproportionately);
  • calling for an inquiry into the link between marijuana and violent crime (likely to target blacks and Latinos disproportionately);
  • reinstating the police tool of asset forfeiture, a legally problematic procedure which allows law enforcement to seize property of individuals who have been suspected of, but not charged with, crimes (in violation of everyone’s civil rights, but to affect blacks and Latinos disproportionately);
  • petitioning Congress for funds to prosecute the retrograde War on Drugs, including recreational and medical marijuana (still more racially disparate impact);
  • importuning state governors with “serious questions” about their state cannabis programs, in an apparent effort to challenge the legitimacy of those programs (latently problematic); and
  • ripping up the Cole Memo, which gave some cover to marijuana businesses.

Jeff Sessions has been dogged by allegations of racism throughout his career, and his fusillade of anti-civil rights actions begs the question: If a racist were in charge of criminal justice for the United States, what would he do? The answer is literally everything listed above. Unfortunately, there may be more to come.

The War on Drugs started out as a war on minority groups, and not much has changed in 50 years. If Dr. Martin Luther King Jr. were alive today, it is almost certain that he would be advocating for an end to the War on Drugs, starting with removal of marijuana from Schedule I of the CSA. Until that happens, and in honor of Dr. King, here are some ways you can pitch in to reverse the racist, immoral and counterproductive state of federal law with respect to cannabis:

  • demand that your Senator co-sponsor the Marijuana Justice Act;
  • demand that other public officials in your state finally step up to de- or reschedule marijuana as relates to the CSA;
  • support organizations across the political spectrum, from the American Civil Liberties Union (ACLU) to Republicans Against Marijuana Prohibition (RAMP), with respect to their efforts to end federal prohibition;
  • support trade groups like the Minority Cannabis Business Association, which promote diversity in the cannabis industry; and
  • support and advocate for city and state programs that aim to help disadvantaged communities cash in on marijuana legalization.

Dr. King died 50 years ago, but his legacy continues to resonate and expand. On this day honoring one of our greatest leaders, it is important to remember all of the reasons we strive to put an end to prohibition, including the most important ones.

california kamala harris cannabis
Talk is cheap.

When it comes to ending federal prohibition, some public officials are do-ers, and other are talkers. Here in Oregon, we are lucky enough to have Congressman Earl Blumenauer, who is a relentless advocate for ending prohibition. Blumenauer helped found the Congressional Cannabis Caucus, and appended his name to the Rohrabacher-Blumenauer Amendment (RBA), which prohibits the U.S. Department of Justice (DOJ) from spending money to interfere with state medical cannabis laws. We are also fortunate to have the likes of Ron Wyden and Jeff Merkley in the Senate, who introduced a marijuana banking bill as far back as 2015, and Governor Kate Brown, who has always been stellar on cannabis.

Those four individuals are Democrats, of course, but there are plenty of vocal Republican advocates for ending prohibition as well. Dana Rohrabacher (of RBA) gets an A+ rating from NORML, and Corey Gardner, the Republican Senator from Colorado, was one of the most strident critics of Jeff Sessions’ recent move to rescind the Cole Memo, pledging to block DOJ nominees until Sessions relents. All of this makes sense, given the status of the plant in these individuals’ respective states, but also the fact that a majority of Republican voters now support marijuana legalization nationwide.

At this point, you would think that every politician in a cannabis-legal state – especially adult-use states – would be pulling on the rope of ending prohibition. Some of our elected and appointed officials, though, are mostly just talk. These individuals give lip service to the notion that the federal government should stand down on cannabis, but they cannot be bothered to introduce legislation, let alone sponsor a bill or make any other attempt to re- or deschedule cannabis with respect to the federal Controlled Substances Act (CSA). President Obama’s Attorney General, Eric Holder, was sometimes criticized for this.

As DOJ head, Holder had the power to press Health and Human Services for an evaluation of cannabis, sufficient to remove it from the CSA. We explained how that works here. Whether Mr. Holder would have succeeded is an open question, but the fact that Holder is now one of the most vocal critics of Session and his cannabis policy, only lends credence to the argument that he should have done more when he had the chance.

Today, at this important time, there are other public officials who should be doing more to end the War on Drugs, but they too are mostly just talk. Case in point: California Democratic Senator Kamala Harris. There are several reasons why Ms. Harris has been catching significant flak for her half measures on cannabis, as compared to other officials: 1) she hails from California, the first state with a medical cannabis program and the world’s largest cannabis economy; 2) she comes from the executive side, having served as California Attorney General; 3) she is a celebrity national politician, who is often floated as a 2020 presidential candidate; and 4) she is constantly talking about the failed War on Drugs. In fact, she talks about it pretty much every single day.

But it’s all talk. As California Attorney General, Ms. Harris did little to advance her state’s interest as to cannabis. In 2014, when she was asked for her opinion on legalizing adult-use cannabis, her response was dismissive laughter. As a state Senator, she has failed to sponsor or even co-sign any bill to re- or deschedule marijuana (and there are some good ones). Aside from lots of talking, Harris’ one big move has been to put together a petition to decriminalize marijuana nationwide (but not to revise the CSA). My eight-year-old niece could do that.

Industry advocates, cannabis users, and voters in general should all pay attention to which of their representatives are talking the talk, and which are walking the walk when it comes to ending prohibition and protecting state industries. Given her career arc and superstar potential, Kamala Harris has famously been referred to as “Eric Holder in a skirt.” When it comes to cannabis, unfortunately, that comparison looks like a pretty good fit.

Former Attorney General Gonzales is right; regardless of one’s opinion about cannabis (and we all know how the current administration feels about cannabis!), it simply does not make sense to spend time and resources prosecuting state-legal cannabis businesses. Our country has too much on its plate to waste time and money prosecuting businesses that work hard to comply with state law and that have already been operating successfully for years without issue. Didn’t we learn this from prohibition?

Do you agree?

Representative Cohen raises a good point about the value of state-level cannabis. Justice Brandeis is right about the benefit of using states as laboratories for trying out new ideas. These state experiments allow us to test what works and what doesn’t before pushing things out nationwide. They also allow each state to tailor its programs to what works for their own citizens and to what their own citizens want.

All this holds true for cannabis too where we see so many of the state-level experimentations working. The states that have legalized cannabis have built up their economies, provided their citizens with access to useful medicine, and offered patients a route out of opioid addiction.

The cannabis “experiment” is working and that bodes well for it to continue rolling out state by state until such time as the whole country wants it.