Oregon Seeks to Avoid Washington’s Marijuana Legalization Mistakes

Colorado and Washington State made history in 2012 by legalizing the personal possession of marijuana and establishing recreational marijuana markets. Both states also allow for medical marijuana, but the effect legalization has had on medical marijuana patients in those states is vastly different. As Oregon seeks to legalize marijuana in 2014, it benefits from the successes in Colorado and fights to avoid the mistakes made in Washington.

Successes in Colorado

In Colorado, activists behind the Amendment 64 campaign to legalize marijuana created a legalization framework that respects Colorado's highly successful medical marijuana program. Existing dispensaries are given first dibs at the new recreational marijuana business licenses and regulations for the recreational market will mirror some of the medical regulations. A single state agency — the Marijuana Enforcement Division — will oversee compliance for both medical and recreational businesses.

Limits for the recreational consumer in Colorado are also not very different from the medical limits in place. Both medical and recreational consumers may cultivate six plants for personal use, but medical consumers may possess two ounces away from the home, while recreational consumers are held to a one-ounce limit away from home. Thus, the only strong incentive for a recreational consumer to "get medical" without a true medical need would be to avoid the 15 percent excise taxes and 10 percent sales taxes Colorado voters just approved for recreational marijuana shops.

Activists in Colorado also refused to include a per se DUID standard for marijuana in their Amendment. Lawmakers in Denver had been pushing a bill that would define 5 nanograms of active THC in the blood as per se proof of impairment, meaning absolute guilt, like blowing a .08 on an alcohol breathalyzer. Given that the science shows there is no reliable per se standard for THC like there is for alcohol, Amendment 64's campaign would not budge. Lawmakers remained unconvinced and eventually passed a 5 nanogram bill, but tempered it with a "permissible inference" of guilt—meaning defendants can argue they weren't impaired at all, an important victory for medical marijuana patients who may be above that arbitrary limit when they first wake up.

But while medical and recreational marijuana are getting along fairly well in Colorado, the same cannot be said for Washington State, where medical marijuana is threatened with extinction by recreational marijuana.

The Mistakes in Washington

While Amendment 64 in Colorado did not include per se DUID, activists in Washington felt the exit polling from California's failed Prop 19 showed that public fear of impaired driving would doom their Initiative 502. Plus, they were told in no uncertain terms that many of the high-profile supporters they had in law enforcement, including former federal prosecutor John McKay, would not support legalization without it.

Washington ultimately included a 5 nanogram per se DUID in Initiative 502. Medical marijuana advocates like CannaCare’s Steve Sarich shrieked in opposition to the standard, which they felt would unfairly earn DUI convictions for unimpaired patients. Another issue of contention with Initiative 502 is its lack of home-growing provisions for personal use, claimed Anthony Martinelli of Sensible Washington, a legalization group that had tried and failed to get an initiative on the ballot in 2010 and 2011. Sarich quickly formed "No on I-502" and made national news as some of Washington's most dedicated pot smokers were opposing legalization.

Part of what made the Washington measure so different was the context in which it was written. While Colorado has had a well-regulated state medical marijuana enforcement division, a patient registry, and commercial dispensaries for years, Washington's medical marijuana market has been an unregulated, unregistered, wink-and-nudge situation. Dispensaries popped up, claiming to be caregivers for patients, exploiting a loophole that allows a caregiver to provide cannabis to any one patient. So long as patients approached the counter one at a time, the clerk was acting as a caregiver for that one patient—wink wink, nudge nudge.

A couple of years ago, the legislature in Olympia attempted to address this situation and others with sweeping new regulations that better defined caregivers and collective gardens, and established a regulated dispensary market. But U.S. Attorneys Mike Ormsby in Spokane and Jenny Durkan in Seattle sent a letter to the governor, warning that “state employees who conducted activities mandated by the Washington legislative proposals would not be immune from liability under the Controlled Substance Act.” So then-Gov. Christine Gregoire line-item vetoed all the dispensary regulations, fearing the potential federal prosecution of state employees.

Washington’s Unregulated Dispensaries in Danger of Extinction

Washington's unregulated dispensaries have flourished to the point where there are now over 200 in the Seattle area alone, aided in part by a provision in the 2011 law not line-item vetoed by Gregoire—the establishment of collective gardens that can produce 45 plants for 10 patients. Patients in Washington have also continued to enjoy the right to possess a pound and a half of useable marijuana and cultivate 15 plants of any size. The resulting glut of marijuana supply dropped the price of weed in the Pacific Northwest to the lowest levels in the country.

Now that Initiative 502 has passed, the gross disparity between medical and recreational marijuana threatens to decimate the former.  While medical consumers can grow 15 marijuana plants of their own, recreational consumers are forbidden from growing any. While medical consumers can possess a pound and a half of marijuana, recreational consumers get one ounce. There is a great incentive for a recreational consumer to “get medical,” and since Washington is one of the few medical marijuana states where nurse practitioners and naturopaths, in addition to medical doctors, can recommend cannabis for medical use, there is plenty of opportunity to do so.

Furthermore, Washington’s Initiative 502 included a sales tax scheme of 25 percent added at the grower, 25 percent added at the processor, and 25 percent added at the retailer, on top of an average 8 percent state sales tax. As the campaign focused heavily on the revenues to be raised for schools and public safety, drafters felt the taxation was necessary to fulfill those promises and to keep the price of cannabis, at least nominally, high enough to discourage shoppers from the black market. (Colorado is unique in that its Taxpayer Bill of Rightsrequires taxation to be voted on separately from its initiatives. Washington voters who wanted legalization had to take it with the exorbitant taxes attached.)

This is where the threat to Washington’s medical marijuana truly lies—competition. If the possession and home-growing advantages of “getting medical” weren’t enough incentive, now Initiative 502 places a few highly regulated, expensively licensed recreational pot shops, taxed at 25 percent three times, in competition with a plethora of unregulated, unlicensed, untaxed medical marijuana dispensaries.

The response to this disparity is something Sarich and the people involved with “No on I-502” predicted—a severe rollback of medical marijuana rights. The Seattle City Council recommended that most medical marijuana patients just be folded into the recreational system. The Washington State Liquor Control Board (WSLCB) suggests that patient possession should be cut from 24 ounces down to three, home growing should be banned, and that a mandatory patient registry is established to provide an exemption only from state and local sales taxes, not the three-times-25 percent taxes. 

To reduce the opportunities to get medical, WSLCB recommend that no health professional can be solely in the business of making recommendations. They believe the current qualifying conditions should be restricted to only those that severely interfere with daily ability to function and that new conditions can’t be introduced by petition, but must be added through the legislature. And, of course, medical marijuana dispensaries will be subject to the same licensing requirements and operating restrictions as recreational pot shops, such as being 1,000 feet away from a school, meaning some 90 percent of current dispensaries and farmers markets would have to close.

What has Oregon Learned from Washington and Colorado?

Activists in Colorado proposed legalization with no per se DUID, personal home-growing, and moderate taxation in a highly regulated medical marijuana state. They got 55 percent of the vote. Activists in Washington proposed legalization with per se DUID, no home-growing, and high taxation in an unregulated medical marijuana state. They also got 55 percent of the vote. What does this mean for activists as they fight to legalize in Oregon in 2014?

The Campaign for the Restoration and Regulation of Hemp (CRRH) has once again proposed the Oregon Cannabis Tax Act (OCTA), which is now Initiative 22. It made the ballot in 2012 as Measure 80 and lost with 47 percent of the vote while Colorado and Washington were winning with the support of 55 percent of voters. OCTA suffered from poor funding, a chief petitioner for a tax measure (Paul Stanford, a medical marijuana clinic entrepreneur and activist) who was lambasted in the press for his tax avoidance and checkered past, and extreme overreach in attempting to legalize unlimited personal possession and cultivation as well as mandating a self-governing commercial board of growers to set marijuana prices.

This time, Stanford has set the personal limits at the same level as the medical limits—24 plants and a pound and a half respectively. Perhaps Colorado’s Amendment 64 taught him to avoid an incentive for people to get medical. Under the proposal, an Oregon Cannabis Commission would be appointed by the governor to regulate commercial production and sales by licensed growers and sellers. The commission would set taxation limits and licensing fees.

Stanford has also submitted Help End Marijuana Prohibition as Initiative 21. This is a short constitutional amendment to define the personal right of Oregonians to use and cultivate cannabis and empower the legislature to regulate the industry. It would provide a constitutional safeguard for any statutory measure that passes to legalize marijuana in the state.

Competing Marijuana Legalization Initiatives in Oregon

Last month, another group, New Approach Oregon (NAO) led by Anthony Johnson, filed an initiative to legalize marijuana as well.  Johnson wants to bypass the signature gathering process by presenting the language to lawmakers in Salem to refer directly to the voters. However, if they fail to do so, Johnson has funding and backing for a signature petition drive and election campaign from national drug reform organizations eager for a 2014 victory.

New Approach Oregon’s measure legalizes the possession of 8 ounces of marijuana and cultivation of four plants per household.  There would still be some incentive to get medical, but only for those truly sick and disabled individuals for whom a half-pound of marijuana would be insufficient. Taxation is limited to just $35 per ounce, instead of a percentage amount that would prove difficult to implement in a state with no sales taxes. Licensing for commercial operations would be an affordable $1,000 as compared to the five-and-six-figure financial requirements to license dispensaries in some medical marijuana states.

Both CRRH and NAO seem united in hoping for the legislature to refer marijuana legalization language to the voters, as that would forestall the effort and expense needed to gather signatures. This week, in his first live interview after filing NAO’s initiative, Johnson flatly rejected any political compromise that would include a controversial per se DUID limit for THC in blood.

On 420RADIO.org’s The Russ Belville Show, I asked whether New Approach Oregon would continue its legalization campaign if that meant emulating Washington’s impaired driving limits. Johnson said, “New Approach Oregon will not move forward with a measure that kills home grows or allows for per se DUIs.”

Stanford has similarly rejected any suggestion of establishing a per se DUID limit, something the state’s largest newspaper, the Oregonian, editorialized in favor of last month. (To be fair, Stanford and Johnson get to make this bold stand at a time when two states have passed legalization with 55 percent of voters in support, and Gallup polls are showing national support at 58 percent. New Approach Washington had to work on its legalization effort in the shadow of California’s failed legalization attempt and Gallup polls showing just 46 percent of national voters in support.)

The Oregonian has now twice called on the legislature to work on marijuana legalization. The gist of its argument is that legalization in inevitable and if lawmakers in Salem don’t craft reasonable legalization now, marijuana activists will pass more wide-open legalization soon. In its second editorial, the paper called on legislators to work directly with Johnson, using the threat of a successful Stanford initiative as leverage. The Oregonian has opposed every attempt Stanford has made to improve marijuana laws and its sudden embrace of Johnson’s efforts is a major shift in opinion.

For a state to consider legalization of a half-pound of marijuana, cultivation of four home plants, and a commercial marijuana market as the conservative, sensible measure signifies a truly new era in drug policy reform. Come this time next year, Oregon may be home to the most legal marijuana in the world.

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