ASA in the News

Marguerite Arnold, Main Street

Washington state is gearing up to face its own green rush later this year over 18 months after legalization of recreational sales in December 2012. The lottery winners for recreational licenses were announced on May 2. Approximately 75% of over 2,000 applicants who applied were qualified to proceed to the actual lottery. Subsequence compliance costs are not insignificant.

The most successful applicants may be able to open doors as early as July. The majority are not expected to open until later in the year.

That said, as the recreational market begins to expand if not redefine the state industry, its initiation will impact the existing thriving medical market. To boot, both medicinal and recreational verticals will be far more tightly regulated as a result.

In an anticipatory move ahead of the lottery results, the Washington Liquor Control Board proposed additional changes to the recreational cannabis law prohibiting both online sales and home delivery.

Online sales of either the drug or edibles containing the same could easily run afoul of the murky boundaries of federal law where it intersects with cannabis sales as a "Schedule I" substance if not laws regarding sales of cannabis on "federal" property. The Internet itself falls under "federal jurisdiction." Washington state, like Colorado and California, has also been the target of many federal raids, some of which occurred as recently as a year to 18 months ago, around the time of state-wide approval of legal sales.

Marijuana delivery is an issue that has mainly developed since the 2012 vote in Washington to meet demand in a newly legal recreational market since recreational users have had no place since then to legally buy the same. The first license for a legal non-care giving designated grower was only approved in March.

In Colorado, the only other state where marijuana is legal for medical and recreational use, does not and never did allow delivery.

How this move in Washington will impact medicinal users and those who serve them is also unclear in the state if not beyond. The tightening of regulations affecting every level of production, if not distribution and sales, to meet the demands of a larger legal market is clearly impacting medical users and not always in a positive way.

According to Kris Hermes, spokesperson for Americans for Safe Access, a national patients' rights advocacy group, medical users, as a group, like the larger population of chronically ill patients and those with serious disabilities, often have logistical barriers to transportation (like driving). The severe burden that new initiatives like banning delivery places on severely ill medical marijuana patients, particularly with new rules on grow gardens, is one that will fall heaviest on the medical user group.

The reason?

The new proposed ban on delivery, per se, which is a fairly new development and aimed at recreational users, also impacts an issue of perhaps the greatest interest right now in Washington: home gardens and so-called "community grows" (collectives of plants for two or more patients). How the state will continue to attempt to regulate the same is an issue of great concern to many, from the business community to patients in particular.

Washington's medical grow and patient regulations are widely considered some of the most loosely written in the U.S., so a move to tighten them up as the state proceeds to widen the legitimate legal market is no surprise to many. Not everyone is also opposed to some kind of reform including gaping loopholes created by an unsteady regulatory development, that need to be fixed in the near future. For example, the state's medical marijuana legislation, dating to 1998, does not provide even arrest protection for chronically-ill users. Because there is no state-wide registry of patients, there are no ID cards to identify them as such.

With no ID cards to identify patients, those who grow their own or maintain gardens serving several patients are extremely legally vulnerable, particularly given the generous allowance each patient or collective is currently legally allowed to grow. The state initially set no limits on how much a single marijuana patient could possess or grow within the window of a "60 day supply." This was eventually redefined as 24 ounces or 15 plants – the most permissive law on state limits nationally.

"Washington State had the most progressive laws with regard to collective cultivation," Hermes said. "But that was curtailed in 2011, when then-Governor Christine Gregoire vetoed most of a bill that would have regulated large-scale cultivation and distribution, retaining a provision to limit the number of plants patients could collectively cultivate to 45."

The Washington State Court of Appeals recently ruled that collective medical grow gardens were also illegal, because there was no way to track or control use. In other states, the same are regulated by state-wide registries of medical marijuana users.

The uncertainty both about gardens and about going cyber with sales and distribution are just two of the many problems the state will face on its road to recreational legalization. The licensing process is already fraught with logjams, disagreements and potentially even civil action, as operating businesses or even "caregivers" with retail aspirations are not receiving licensing approval as the state gears up for wider sales this year.

"The main argument for going this route is that the state can better track the production and distribution of cannabis," said Chris Walsh, editor of CannaBusiness Media. "It's very difficult to do that when you have thousands of patients and caregivers growing their own. The counter-argument is that these laws open the door for big business and lead to higher prices that many patients simply can't afford. It's often cheaper to grow your own medical cannabis – or obtain it from a caregiver – than to buy it from a storefront dispensary."

What is clear, however, is that what goes in Washington will have implications nationally, as there are many state battles that will eventually shape a federal debate on the same. The presidential race in 2016 is likely to become the first time the issue is ever put to a real national debate. In the meantime, creativity and fast-changing regulations are the name of the game everywhere as the nation "greens."