What Election Day Could Mean for Marijuana Policy
October 27, 2016
On November 8, five states (California, Maine, Massachusetts, Nevada, and Arizona) will vote on whether to legalize recreational marijuana. Four other states (Florida, Arkansas, North Dakota, and Montana) have medical marijuana initiatives on the ballot. Current polling suggests that all nine measures could pass. (e.g., California polls show legalization is drawing the support of 60 percent of voters).[1]
No matter the outcome of these ballot initiatives, 2016 will be the most significant year in marijuana policy since President Richard M. Nixon signed the Controlled Substances Act into law over 45 years ago.[2] Following Colorado’s legalization of recreational marijuana in 2014, marijuana advocates across the country have continued their push to reform state marijuana laws through ballot initiatives and legislative acts.
If the polls are correct, in a matter of weeks, marijuana reforms in the U.S. could reach a tipping point, accelerating the acceptance of marijuana in both medical and social settings and fueling the growth of an industry that is already expanding rapidly.
The federal government has indicated a willingness to let states dictate marijuana policy so long as they do not compromise key federal priorities; such as preventing distribution of marijuana to minors and preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, or cartels.[3]
Medical marijuana is currently legal in 25 states and Washington, D.C.[4] This year, Pennsylvania became the 24th state to legalize medical marijuana for specific medical conditions. From April 2016 to October 2016, the Pennsylvania Department of Health (“DOH”) moved quickly in drafting regulations and seeking public comment to shape Pennsylvania’s new medical marijuana program with the stated goal of getting Pennsylvania patients access to medical marijuana as quickly as possible.
To that end, in July 2016, the DOH began accepting applications for the program’s Safe Harbor Letter, which allows parents to administer medical marijuana to minors even if the marijuana was obtained outside the state’s borders. The progress in Pennsylvania may be encouraging news to legalization supporters, but it could be just a prelude to more drastic reforms across the county.
Opponents of legalization warn that it places profits over health and safety.[5] They caution against advocates’ promises of increased tax revenue and point to lack of available research of marijuana’s medical benefits.[6] Recent data suggests their message is being heard. In Arizona and Nevada, groups opposed to legalization have out-fundraised their pro-marijuana counterparts.[7]
Marijuana advocates have relied on data, fundraising, and a multitude of grass-roots efforts to support further liberalization of marijuana laws. And marijuana – both recreational and medical – is big business. In 2015, Americans spent $5.4 billion on legal recreational and medical marijuana.[8] Colorado is projected to bring in $140 million in tax revenue from marijuana sales in 2016;[9] Washington state is projected to make $270 million in tax revenue.[10] Oregon collected $3.48 million in the first month recreational marijuana became legal.[11] These revenues are enticing for lawmakers and their constituents who see regulation and taxation of marijuana as a way to close budget shortfalls.
These gains will seem modest, however, if Californians vote “yes” on recreational marijuana in November. California is the world’s sixth-largest economy and home to 40 million Americans. California already sits on a $2.7 billion medical marijuana industry, a figure that could double if recreational marijuana is added.[12] Given the stakes, “experts say the November 8 vote has the potential to either delay the legalization movement or propel it past the point of no return.”[13] A recent Gallup poll suggests the latter. As of this writing public support of legal marijuana has reached 60 percent in the U.S., the highest it has been in 47 years.[14]
On the opposite side of the ledger, marijuana prohibition costs the U.S. approximately $465 million per year for arrests for marijuana possession and $3.6 billion to enforcement marijuana laws.[15] Moreover, despite decriminalization efforts in several states, many advocates claim marijuana-related arrests still reflect racial bias – marijuana use is roughly equal among whites and African-Americans yet, African-Americans are 3.73 times as likely to be arrested for marijuana possession according to an ACLU report.[16] While many of the most dire predictions regarding marijuana abuse and increased crime in states with legal marijuana have not materialized, [17] concerns have been raised about increased exposure to marijuana by younger children[18],[19]and increased risks of driving while high.[20]
Regardless of the outcome, November will be a pivotal month in the history of marijuana regulation in the U.S. and it just may force the U.S. Congress to enact policies to harmonize the current dissonance between federal and state approaches.
[1] C. Ingraham, An unprecedented number of states will vote on marijuana this fall, The Washington Post, Sept. 2, 2016, https://www.washingtonpost.com/news/wonk/wp/2016/09/02/an-unprecedented-number-of-states-will-vote-on-marijuana-this-fall/.
[2] A. Nordrum, Why Is Marijuana A Schedule I Drug, International Business Times, Feb. 19, 2015, https://www.ibtimes.com/why-marijuana-schedule-i-drug-1821426.
[3] Memorandum from Deputy Attorney General James M. Cole, U.S. Dept. of Justice, to U.S. Attorneys, Aug. 29, 2013, https://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf
[4] State Marijuana Laws Map, Governing, May 25, 2016, https://www.governing.com/gov-data/state-marijuana-laws-map-medical-recreational.html
[5] K. Fischer, False Promise of Tax Revenue from Pot, LifeZette, May 31, 2016, https://www.lifezette.com/healthzette/false-promise-tax-revenue-pot/
[6] A. Park, Here’s What Science Says About Medical Marijuana, Time, June 23, 2105, https://time.com/3931863/medical-marijuana-benefits/
[7] C. Ingraham, A casino magnate is spending millions to fight legal marijuana in three states, The Washington Post, Oct. 26, 2016, https://www.washingtonpost.com/news/wonk/wp/2016/10/26/a-casino-magnate-is-spending-millions-to-fight-legal-marijuana-in-three-states/
[8] A. Blake, Legal marijuana sales netted $5.4 billion in 2015, on track to hit $20 billion by decade’s end, Feb. 3, 2016, https://www.washingtontimes.com/news/2016/feb/3/legal-marijuana-sales-netted-54-billion-in-2015-on/.
[9] G. Ekins, Marijuana Legalization and Taxes: Federal Revenue Impact, May 12, 2016, https://taxfoundation.org/article/marijuana-legalization-and-taxes-federal-revenue-impact.
[10] Id.
[11] J. Zorthian, Oregon Just Made $3.48 Million From Marijuana, Time, Mar. 17, 2016, https://time.com/4263411/oregon-marijuana-tax-revenue/
[12] I. Lovett, In California, Marijuana Is Smelling More Like Big Business, The New York Times, Apr. 11, 2016, https://www.nytimes.com/2016/04/12/us/in-california-marijuana-is-smelling-more-like-big-business.html
[13] B.E., Staggs, California marijuana legalization might have its greatest impact elsewhere, The Cannabist, Oct. 10, 2016, https://www.thecannabist.co/2016/10/10/california-marijuana-legalization-impact-elsewhere/64927/
[14] A. Swift, Support of Legal Marijuana Use Up to 60% in U.S., Gallup, Oct. 19, 2016, https://www.gallup.com/poll/196550/support-legal marijuana.aspx?g_source=Social%20Issues&g_medium=lead&g_campaign=tiles
[15] The War on Marijuana in Black and White, ACLU Foundation, 2013, https://www.aclu.org/report/report-war-marijuana-black-and-white?redirect=criminal-law-reform/war-marijuana-black-and-white
[16] Id.
[17] J. Miron, et al., Dose of Reality: The Effect of State Marijuana Legalizations, CATO Institute, Sept. 16, 2016, at 1-2.
[18] Amercian College of Pediatricians, Marijuana Use: Detrimental to Youth, April 2016, https://www.acpeds.org/marijuana-use-detrimental-to-youth.
[19] Most recent studies show no increased use by teens in recreational states. Colorado’s Teen Marijuana Usage Dips after Legalization, Scientific American, last visited Oct. 27, 2016, https://www.scientificamerican.com/article/colorado-s-teen-marijuana-usage-dips-after-legalization
[20] C. Isidore, Fatal accidents involving stoned drivers soared in Washington since pot was legalized, CNN Money, May 10, 2016, https://money.cnn.com/2016/05/10/news/stoned-driving-fatal-accidents.
The Regulated Substances Blog is intended to keep readers current on developments regarding medical cannabis legalization and regulation and is not intended to be legal advice. If you have any questions, please contact the author Peter Murphy at pmurphy@eckertseamans.com. You may also contact Daniel Clearfield at dclearfield@eckertseamans.com, Robert Hoffman at rhoffman@eckertseamans.com, or any other member of our Regulated Substances Group.