How we legalize marijuana, Part 5: What the Act does not do

This is part 5 of my series on the proposed Control, Regulate, and Tax Adult Use of Marijuana Act (“the Act”) that will likely reach the California ballot in November 2016. The series started hereThank you for reading.

What the Act does not do:
Change DUI rules. Drugged driving will be just as illegal, and there are issues that will have to be addressed there – urine tests for cannabis are oversensitive. One small earmark the Act makes is to the Highway Patrol to improve enforcement protocols, including possibly developing better technology to determine if someone is really impaired.

Restrict what employers can do. Pot will be legal, but you can still lose your job for it, and the Act will do nothing about that. Under legalization, we will eventually have to tackle the issue of people being fired or excluded from jobs for positive urine results when they are not actually impaired on the job, and whether this is a reasonable power for employers to have. But tactically, legalization, not employment discrimination, is the issue to be resolved right now; 2010’s Prop 19 tried to include a kind of nondiscrimination clause and was pilloried for it.

Restrict what local governments can regulate. Local governments – cities and counties – will have a free hand to regulate marijuana businesses in their own preferred way, up to and including completely banning any businesses in their jurisdiction. If they issue their own business licenses, the state will honor them and not override their denials. This is not ideal because large swathes of California could end up with no retail at all, forestalling the growth of the legal market, but I do strongly believe it is a necessary measure for the bill to pass: a lot of people are skeptical of the drug war but still see dispensaries as shady and don’t want them forced into their community. The earlier version of this bill said local governments could not completely ban businesses without putting it to a popular vote. I wrote a comment letter that among other things strongly advocated against that provision, and I’m glad to see it has since been removed (although I chalk that up more to the reported involvement of the League of Cities than to my letter).

Local governments will of course not be able to criminalize personal possession or use on their own, just commercial business. As for personal cultivation, people will be able to grow up to six plants indoors in any jurisdiction, but local government will have the authority to ban outdoor growth. Again, not ideal, but certainly part of preserving local choice.

Local governments will also not be able to prevent commercial deliveries passing through their jurisdictions, assuming they’re properly licensed. This seems to mean that people in places that ban retail will be free to order from out of town, although for some places the distances involved may make delivery impractical.

(Here, by the way, is an example of why a bona fide individual user might reasonably have more than one ounce at a time: if it’s a two-hour drive to the nearest retailer.)

Harm medical users. The Compassionate Use Act passed by the voters in 1996 remains in place, and this new Act explicitly leaves the CUA and its implementing legislation in place, so as I read the Act, medical users will still have whatever rights they have today, which may include forming collectives, growing over the six-plant limit, or possessing more than an ounce. I’ve found a lot of paranoid talk online about the Act being designed to eradicate the existing rights of medical users and their caregivers, to make everyone have to buy from businesses, but that is not borne out by the text.

A decision in the Act I don’t fully understand is that medical marijuana will bear the new excise tax just like recreational marijuana, but will be exempted from sales tax in particular.

The medical system is changing anyway, though, under current law without help from the Act. The Legislature just passed a bill cracking down on the current laxness of the medical recommendation system, if only mildly. It calls on the Medical Board to develop guidelines for when medical marijuana is appropriate, and defines it as unprofessional conduct for a doctor to recommend it to a person without an actual examination or a medical indication; it’s also unprofessional conduct for them to have financial ties to dispensaries. This may cut down on the recommendation mills that advertise in the weeklies and slowly push more business from the medical system to the new recreational system. It does not, however, mean any significant new constraints on bona fide medical users, or for that matter on debatable edge cases – just the “I don’t feel great” / “Fine, here’s your medical cannabis recommendation” transactions.

It is possible that due to the incentive of tax revenues, future new legislation could crack down on collectives if they’re using CUA as a shield to participate covertly in the recreational market. Something similar may be happening in Washington. I don’t see that as a significant concern; medical laws are for medical use.

Replicate flawed Ohio measure. Despite the relative friendliness of the Act to market consolidation and existing players, which I described above, it is nothing like the Ohio measure that recently failed that would have given a set of entities a formal, legal lock on the market.

Tomorrow, part 6: final observations and thoughts on where the Act leads us.

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