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Marijuana Policy in 2015: Eight Big Things to Watch

John Hudak

1. Oregon, Alaska Plan & Prepare for Legal Marijuana

In November 2014, Oregon and Alaska followed Washington and Colorado in legalizing recreational marijuana. While the right of Oregonians and Alaskans to grow marijuana at home begins early on, the commercial market and regulatory system will not begin for one to two years, due to the language in Ballot Measure 91 (OR) & Ballot Measure 2 (AK).

Each ballot measure requires the state to design and construct a commercial market within the bounds laid out in the voter-approved language. Each measure also charges the respective state legislatures and alcohol regulatory bodies to work together to design regulations governing legal marijuana. The latter is where the action will be in 2015. It will be important to watch what Oregon and Alaska decide in setting up rules to govern this new area of policy. These rules may well determine the success or failure of marijuana policy in each state, and the path taken will also offer insight into how states are learning from each other as this policy area expands.

Finally, and of particular note, Oregon will become the first state to legalize marijuana that shares a border with a state (WA) that has already approved legalization. Watching Oregon’s commercial and regulatory choices will be crucial in understanding whether and to what extent states may strive for marijuana market advantages vis-à-vis bordering states. Decisions over taxation in Oregon suggest this may be part of the political, policy, and economic calculus.

2. Identifying the Next States to Legalize Marijuana

Compared with 2014, 2016 may be a more favorable political environment for states seeking to put legalization initiatives on the ballot, and 2015 will be extremely important for those efforts. Legalizing states (and even Florida for medical marijuana) have shown us that ballot initiatives are expensive, labor intensive, and require extensive planning on the part of supporters and opponents. Those seeking to advance the cause of legalization in 2016 will begin organizing the grassroots, planning signature drives, hiring staff, coordinating volunteers, drafting and circulating ballot language, and raising money.

2015 will show which states are serious about such efforts in 2016. It is widely expected that California will advance an initiative, and Florida may take another swing at approving medical marijuana, after having fallen just short of approval in 2014. Other states may well follow suit. As a result, to gain insight into who will push ballot initiatives, follow the money (and staff and volunteers and media campaigns) in 2015. Similarly, those seeking to oppose legalization efforts can be tipped off as to the states where similar efforts (fundraising, messaging, coordinating, staffing) will be necessary.

3. Cannabis Policy & State Legislative Action

In some states, the ballot initiative process is not as inviting for those seeking statewide change. As a result, the battleground for enacting items like the legalization of recreational or medical marijuana is not the ballot box, but the state legislature. As 2015 begins, it will be crucial to identify state legislative proposals involving marijuana policy and monitor their progress during the legislative sessions. Those efforts will involve recreational legalization, decriminalization, or medical legalization. Some states, like Tennessee, may consider relaxing bans on hemp production. Still, in other states, legislative proposals may seek to reaffirm or clarify legal bans on marijuana.

4. Cannabis & the Courts

In 2014, there were multiple, high-profile lawsuits surrounding marijuana policy which may play out in 2015. The one likely to be decided soon is Coats v. Dish Network, a Colorado case in which a Dish Network employee is challenging the legality of his firing for testing positive for marijuana, a product he used for medical purposes. In 2013, the Colorado Court of Appeals upheld the employer’s right to fire the employee, and in late 2014, the Colorado Supreme Court heard oral arguments in the case. Their decision will likely settle the issue of employer-sponsored marijuana testing.

In addition, Nebraska and Oklahoma sued Colorado over that state’s move to legalize marijuana, claiming that the state is violating federal law and causing a burden on bordering states. The lawsuit was filed directly in the US Supreme Court, as the Court has original jurisdiction over conflicts among the states. How the Supreme Court handles this filing will shed light on federal courts’ willingness to engage this policy area at present and going forward.

5. Answers to Questions About DC’s Marijuana Policy

Like Oregon and Alaska, DC legalized marijuana on Election Day 2014. However, since Initiative 71 passed, many questions have been raised. As Philip Wallach and I discussed in November, Initiative 71 legalized homegrows for recreational marijuana, and (because of legal requirements around the initiative process in DC) left to the DC Council the charge of setting up a commercial market and regulatory system. Legislation to that effect was in the works, but was complicated by a rider attached to an Omnibus Appropriations bill passed by the US Congress in December. The rider, penned by Rep. Andy Harris (R-MD), sought to neuter Initiative 71 and prevent DC from legalizing marijuana.

However, the language of the rider is unclear, leaving many to argue that the move simply prevents the District from forming a commercial market and regulatory regime, while remaining silent on the right of DC residents to homegrow marijuana. Clarity about the future of marijuana policy in DC will almost surely be left to the federal courts. Legal challenges are certain to abound, and 2015 will be the year in which that process begins.

Additionally, under the District of Columbia Home Rule Act, the District must transmit Initiative 71 to Congress, where Congress has the opportunity to strike it down. If Congress does so, the issue will largely be settled; if they fail to do so, it further complicates the District’s guidance on the issue. Congressional inaction would likely spur additional efforts for clarity from the courts.

6. Colorado & Washington (& Uruguay) Continue Legalization

The first two states to legalize recreational marijuana will continue their experiment in 2015. In Colorado, efforts to deal with issues around edibles, product testing, and homegrows will be on the agenda. In fact, a working group dealing with edibles sent a series of recommendations to the state legislature, after failing to agree on a unified set of suggestions. The new legislative session in Colorado wraps up in May, meaning we will be able to see action (or inaction) in the first few months of the year.

Washington, a state a bit slower out of the gate, will face questions about both the supply of marijuana to the market and tax rates, both of which seriously affect the price of legal marijuana. The policy challenge Washington faces is that legal weed could be too costly to lure consumers from the black market, and the manner in which the state deals with it will an important item to watch in 2015.

On the international front, Uruguay will continue to roll out its own implementation of legal marijuana. Thus far, there have been bumps in the road as the Latin American nation becomes the first country in the world to legalize, the country is working hard to ready a bureaucracy and a consumer base for the experiment. At the same time, Uruguay will continue to advance this policy area as newly-elected President Tabaré Vásquez returns to office in March, while taking a careful and skeptical approach to the roll out. The effectiveness of Uruguay’s implementation and the patience of the new president for the process will be center stage in 2015.

7. Data, Data, Data

Any marijuana policy advocates—supporters or opponents—who make conclusive claims from a few data points live in a delusional world. The reality is that it is too early, there is not enough data, and the baselines by which several data are compared are imperfect.

Do data about usage, public health, public safety, traffic safety, crime, enforcement, etc., tell us anything? Absolutely. However, they are far from telling us the whole story. Instead, patience is key.  2015 (and subsequent years) will offer steady flows of data from Colorado and Washington, and eventually other states. Over time, we will have a better idea about the impact of legalized, recreational marijuana on key societal indicators.

So, don’t buy a phony bill of goods about conclusions based on data thus far. Instead, wait to see what additional data tell us over time. A good New Year’s resolution for marijuana policy watchers: take a deep breath (preferably of clean air) and think about data empirically, not emotionally.

8. Presidential Candidates & Cannabis

One certainty about 2015 is that it marks the start of the 2016 presidential campaign. As Democrats wait to hear about Hillary Clinton’s decision, a slew of Republicans are lining up (quietly or otherwise) to succeed Barack Obama. The next president can have a substantial impact on marijuana policy in the United States. Right now, the experiments in Colorado and Washington continue to proceed, without federal government intervention because of an informal agreement between the Justice Department and the states. Such a policy could be reversed on January 20, 2017, with a new president with a different position on marijuana.

As dozens of states have approved medical marijuana, and now four states and DC have approved recreational marijuana, cannabis policy will absolutely be part of the 2016 conversation—and that conversation will begin this year. What is so fascinating about marijuana policy is that, unlike most issues, it does not fall neatly along party lines. Some Democrats support it; some Democrats oppose it. Some Republicans support it; some Republicans oppose it. Thus far, prospective candidates have been tightlipped on the issue, with a few exceptions. Texas Governor Rick Perry has openly discussed decriminalization. Kentucky Senator Rand Paul has talked about a need for drug policy reform. Former Secretary of State Hillary Clinton has hinted that she is comfortable letting the states experiment as they have been.

Those considering a run for the White House have been able to remain mum or offer hints at their policy views on marijuana. However, as candidates declare, journalists begin looking for news hooks, voters start meeting those running, and debate moderators start peppering would-be presidents with questions, marijuana is sure to become a serious issue in a way that it has not in prior presidential campaigns. The next election will not simply be a discussion of whether a candidate has inhaled in the past, but about how a president will treat those who choose to inhale in the future.  

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