Taxation and Regulation Might Not Be Fun to Talk About, But It's the Key to Making Sure Pot Stays Legal

A majority of California voters now say that they back Proposition 19, which seeks to enact the most far-reaching marijuana law reforms anywhere in the United States. The immediate effect of Prop. 19, if passed, would be to provide legal protection to the individual marijuana consumer - that is the estimated 3.3 million Californians who are presently using marijuana for non-medical purposes.

Passage of Prop. 19 makes the adult possession (up to an ounce) of cannabis and the cultivation of marijuana (whatever amount may be harvested from a 25 square foot garden) legal. That is, marijuana -- when possessed within these specific limits -- will no longer per se be defined under state law as illicit contraband that may be legally seized by the full force by law enforcement.

The broader, long-term effect of this initiative will be to allow communities to finally come to terms with the fact that some 10 percent of Californians are already using marijuana, and that it is time that society regulates its commercial sale, production, and distribution in a safe, common sense manner. Society doesn't regulate alcohol because it's innocuous; it does so because the substance alters mood and behavior and should be regulated appropriately -- along with controls regarding who can legally produce it, consume it, and under what circumstances its use is lawfully permitted. This same principle ought to apply to the retail production and sale of cannabis, just as it presently applies to virtually all legal commodities sold on the retail market.

Yet as is apparent by the criticism voiced by some, there is a minority of folks who wish to define cannabis legalization unconventionally. Fringe websites such as 'stoners against Prop. 19.' argue, "Simply put, the Regulate, Control and Tax Cannabis Initiative does not reflect most people's ideas of what legalization would be." That may be true. But the conflict doesn't lie with Prop. 19; it lies with some people's 'idea of what legalization should be.' They would prefer that legalization be characterized as the absence of any regulation whatsoever. It's ironic because, in truth, it is the present criminal prohibition of cannabis that is an unregulated free for all. Conventional legalization is just the opposite.

It is counterintuitive for some critics of Prop. 19 to advocate that marijuana be treated in a 'legal' manner, but then at the same time demand that it not be subject to regulation. Bottom line: all legal commodities are regulated in some manner and their retail production or sale is subject to taxation.

For example, cell phones are legal to possess and use in California, but if an individual uses his or her cell phone while driving they are subject to legal sanctions and intervention by law enforcement.

Possessing domesticated pets are legal in California and elsewhere, yet certain apartments and home rentals forbid tenants from having pets on the premises. Certain localities have even barred adults from possessing certain pets (e.g., pit bulls) all together.

Water is legal, but it's a product that is highly regulated by the government. The state taxes private individuals' water use; it can add components like fluoride to the product without voter consent, and it can even sanction the private individual if their water use is greater than that deemed appropriate by the government (in times of water rationing). Yet, even with these rules and regulations, is there any organized outcry from the public claiming that water, pets, or cell phones 'aren't really legal?'

Ditto for the subject of taxation. Gasoline is taxed at the state level, federal level, and there's also an excise tax that is passed on to the consumer. Same with alcohol. There are a multitude of taxes that are charged to the consumer on his or her phone bill. How about the taxes tacked on to airline travel, which equal nearly 25 percent of the consumer's total purchase price? By comparison, the number of specific taxes and regulations sought to be imposed upon marijuana under Prop. 19 are arguably minimal in comparison to the taxes and regulations on many commodities consumers already use every day. In fact, under the proposition, an adult can grow marijuana themselves and avoid any taxes all together.

Is there the possibility that under Prop. 19 some local governments might seek to over-regulate or over-tax certain aspects of the plant's use or retail distribution? Of course, and that is precisely why reformers and other concerned citizens will continue to need to be involved in the democratic process after Prop. 19 passes. Ultimately however, the question is: what is the preferable policy for adult marijuana use -- not the Utopian. Right now the state has the power of a gun to seize an adult's marijuana -- even marijuana that is used in the privacy of one's home -- and to sanction that adult with criminal prosecution and a criminal record if their use is for non-medical purposes. Under Prop. 19, an individual would no longer face these criminal sanctions for their private activities, as long as their private use was limited to possession and cultivation within certain limits. That is legalization. And in NORML's opinion, that is a net gain -- not a net loss.

Bottom line: California criminally prohibited the possession and use of marijuana in 1913. Nearly 100 years later it is apparent that cannabis is here to stay. It is time to begin to address this reality, and regulate its production, distribution, and use accordingly. Proposition 19 is a first step (but certainly not the final step) in this direction. It's time to end the legal harassment, discrimination, and criminal prosecution of adult marijuana users in California simply because they are healthy.


A previous version of this commentary appeared online at:

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