The US votes for change (to its drug laws)

Although the US has for a long time been one of the world’s most ardent supporters of global prohibition, a number of its constituent states have demonstrated significantly more progressive thinking on drugs. In 2010, a state level ballot - Proposition 19 - in California, very nearly led to legal regulation of cannabis in that state. And while the ballot was narrowly defeated (53.5% vs 46.5%), it hinted at the extent of potential support for drug policy reform among Americans.

As has been widely reported, there are now similar ballot initiatives in Washington, Oregon and Colorado, and there's a strong chance at least one of them will pass. They all contain different provisions and details of their respective regulatory frameworks. These are summarised in this table (with thanks to the National Cannabis Coalition):

State
Initiative	Oregon Cannabis Tax Act (OCTA or I-9)	Regulate Marijuana Like Alcohol (A-64 Colorado)	New Approach Washington (I-502)
Personal Possession	Allowed, Limit Not Designated[ii]	1 ounce in public; all of the cannabis produced from harvests of personal plants at the grow site.	1 ounce of cannabis; 16 ounces of solid products (hash, brownies, etc.); 72 ounces of liquid products (tinctures, etc.)
Personal Cultivation	Allowed, Limit Not Designated	6 plants, only 3 in flower.	NOT ALLOWED
Age Limit	21 Years Old	21 Years Old	21 Years Old
Public Consumption	None except non-minor areas where prominent signs allow it.	No “open and public” consumption.	None.
DUID Standard	Current Oregon Law (demonstrated impairment)	Current Colorado law (demonstrated impairment)	New 5ng THC / mL blood per se DUID; zero-tolerance under age 21.
Regulatory Body	New Oregon Cannabis Commission (OCC)	Colorado Department of Revenue	Washington State Liquor Control Board
Hashish / Hash Oil?	“Cannabis means all parts, derivatives, or preparations of the cannabis plant.”	“Marijuana means… every compound, manufacture, salt, derivative, mixture, or preparation of the plant, or its seeds, or its resin, including concentrates.”	“Marijuana means… every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin.”
Industrial Hemp?[iii]	Legalized as any crop, no licenses, fees, or regulation; all seeds & starts are considered hemp.	Hemp defined as <0.3% THC cannabis, department shall set hemp regulations.	Marijuana defined as >0.3% THC, implying hemp is any cannabis <=0.3% THC and thereby legalized.
Commercial Cultivation	Individuals may cultivate for sale to the OCC	Marijuana Cultivation Facilities	Marijuana producer’s license available for cannabis sales to processors[iv]
Commercial Processing	Individuals may process cannabis into hash, hash oil, medibles, tinctures, salves, etc. for sale to the OCC	Marijuana Product Manufacturing Facilities	Marijuana processor’s license available for cannabis sales to retailers.
Commercial Sales	OCC Cannabis Stores, may limit amounts and frequency	Retail Marijuana Stores	Marijuana retailer’s license available for cannabis sales to the public. Can only sell marijuana.
Commercial Zoning	Not specified, OCC may set regulations	Not specified, department may set regulations	>1000 feet of schools, playgrounds, other locations with minors.
Taxes & Fees	Not specified	15% excise tax at wholesale level[v] (cultivator to processor or retailer)	25% excise tax at each stage of sales (producer to processor to retailer to customer)
Medical Marijuana	OCC Stores sell cannabis at cost to qualifying patients.	Act does not apply to medical marijuana, which retains its current regulatory structure.	Improves medical marijuana by providing protection from arrest for some possession.[vi]
Restrictions	Sale to minors or unlicensed sale forfeits one’s right to buy, sell, or process cannabis	Localities may ban commercial cultivation, processing, retail through their governing body or by ballot initiative only in even-numbered years.	May set maximum number of retail outlets / county.  Signage can be no more than 1600 square inches.  No advertising near kids.
Fee Distribution	After OCC / AG costs, 90% to General Fund, 7% to Drug Abuse Treatment, 1% for hemp promotion, 1% hemp biodiesel, 1% to school drug education.	First $40M to Public School Capital Construction Assistance Fund; remainder to General Fund	Dedicated marijuana fund run by State Liquor Control Board.  $125K to Healthy Use Survey; $50K to social and health reports; $5K to UW for web-based marijuana education; $1.5M to State Liquor Control Board; remainder: 15% to drug treatment; 10% for drug education; 1% to state university research; 50% to Washington Health Plan; 5% to community health care; 0.3% to building bridges program; remainder to General Fund.

You can read about the cannabis regulation models Transform has proposed in 'After the War on Drugs; Blueprint for Regulation' (The Oregon measures probably coming closest). 

There have been a series of intense debates within the US cannabis reform movement about the details of these ballots - with the new per se Driving Under the Influence (DUI) proposal on the Washington State ballot proving a particular flash point. This would establish a threshold quantity of THC in the blood that if found in drivers would lead to an automatic DUI prosecution, regardless of impairment. Without burrowing too far into the technicalities of this particular debate - in summary: the promoters of the ballot argued that a tough DUI provision, whilst not ideal, was a political necessity to get the ballot passed (anti reform critics frequently playing on the risk of stoned drivers), whilst opponents of this specific provision argued that it would lead to unfair prosecutions of people driving whilst not impaired - particularly under 21s. 

These debates have been complicated further by promotion of anti-ballot campaigns led by some of the commercial interests in the booming medical cannabis industry in these states, some of whom view the passing of the ballots as a threat to their businesses (not only is an unspecified, but assumed to be quite significant  proportion of medical cannabis used for recreational non medical purposes, but with legal availability of a quality assured non medical product, the necessity for dedicated medical suppliers diminishes dramatically). This has all led led to the peculiar phenomenon of this year's Seattle Hempfest - the world's biggest annual cannabis festival, and by implication also the worlds biggest legalisation rally, was also simultaneously this year's biggest anti-legalisation rally.  

These various squabbles aside, the reality is that Washington and Colorado in particular are looking like they may be in with a real shot at winning. In Colorado polls are consistently showing a majority of voters to be in favour of the state’s legalisation bill, Amendment 64, which is being promoted by the "Campaign to Regulate Marijuana like Alcohol".

Health conscious: John Hickenlooper

Age controls are an especially good illustration of the potential benefits of alcohol-style regulation, as a study a few years ago from the US National Center on Addiction and Substance Abuse found that it was easier for teenagers to buy cannabis than alcohol, which somewhat undermines the commonly heard “but-think-of-the-children!” critiques from the nay-sayers.

The governor of Colorado, John Hickenlooper, has criticised cannabis regulation on just such grounds. He said:

“[Amendment 64 has the] potential to increase the number of children using drugs and would detract from efforts to make Colorado the healthiest state in the nation. It sends the wrong message to kids that drugs are OK.” 

This is interesting because, as Hickenlooper proudly told the press not so long ago, he’s “the first brewer who’s even been a governor”. It’s not clear whether Governor Hickenlooper’s career supplying Colorado with the mind-altering drug alcohol represents his effort to make Colorado the healthiest state in the nation, but it is clear that he doesn’t like the idea of people supplying another (rival?) mind-altering drug out of concern for public health.

Other politicians – as well as physicians and law enforcement officials – have, however, publicly declared their support for Amendment 64, and TV ads are now being aired to promote the campaign. Similarly impressive endorsements are lining up behind  the Washington initiative.

But even if the positive publicity does the trick and the encouraging polling lasts until election day, there’s still the thorny issue of the federal government to negotiate. It’s unlikely that were any of the other initiatives to pass, the feds would sit back while states allowed activities that are in direct conflict with federal law.

This Monday, directors of the Office of National Drug Control Policy spoke to the Department of Justice to remind it that if any of the legalisation initiatives pass, they would still be violating federal law and could trigger a constitutional showdown. The ONDCP is clearly attempting to pressure Attorney General Eric Holder into making a public statement opposing these measures, as the Department of Justice is still yet to do so, despite only a couple of weeks remaining until election day. Where this is all going to lead is not clear - we would be moving into uncharted territory; the first time anywhere in the world has unambiguously legalised and regulated production and sale of cannabis for non medical use.

Speaking to one of the architects of the prop-19 California ballot back in 2010, they were open about not having a plan for resolving state vs federal law tensions, or for that matter the less discussed but arguably even more significant issue of violating the International UN drug conventions, to which the US is a signatory (indeed they were the driving force behind their creation). Their plan was, as they put it - 'to start a shit storm and see where it leads'.

If the ONDCP have a plan - they are not letting on either (see this conversation Transform had with the US Drug Tsar in 2011).


Whatever the outcome of the votes, or of possible states vs feds (or vs UN) legal wrangles, the ensuing drug policy debate can only be useful in raising awareness of the issue, and could also provide greater political space for other countries – like Mexico, Guatemala and Colombia, who recently took their calls for change to the UN – to be more vocal in speaking out against the war on drugs and be bolder in their moves towards more substantial reform.

[ii] OCTA only specifies that commercial cultivation and sales must be licensed by OCC and that personal cultivation and sales need not be licensed.  Presumably, you could grow a football field of plants and possess a large Hefty Bag full of pot under OCTA, so long as you sold none of it.

[iii] All hemp production still remains illegal under federal law without a DEA permit.

[iv] I-502 producers and processors may not have a direct or indirect financial interest in retailers.

[v] Colorado’s TABOR requires any tax increase to go before a vote of the people.  15% is merely the maximum authorized wholesale excise tax that the legislature may enact.

[vi] Washington’s medical marijuana law has no registry cards and only an affirmative defense to prosecution.  Thus, medical marijuana patients can now be arrested by police, and then they have to provide an affirmative defense to the judge.  Under I-502, these patients would now be protected from arrest for 1 ounce of cannabis, 16 ounces of medibles, or 72 ounces of tinctures.