Voters may have spoken on marijuana legalization, but the forecast for when Mainers could legally enjoy the drug remains hazy, at best.
Carrying out the will of the voters – albeit a slim majority of them – on legalization will be one of the most arduous tasks facing lawmakers returning in January for a legislative session overflowing with major issues.
Absent a legal curveball from Gov. Paul LePage, a foe of legalization, Mainers 21 and over might be able to possess and grow their own pot by late January or early February even if retail sales are perhaps a year away. But those hoping to enjoy a puff of their personal stash while policymakers figure out the complicated retail details could be disappointed.
There is also a strong sentiment among some power brokers in Augusta – including Senate President Mike Thibodeau and Attorney General Janet Mills – that legalization should be postponed while lawmakers figure out how to regulate the drug.
Among the major legalization-related questions facing Maine are: How to protect children? Which state agency should oversee the industry? How to pay for that regulation? What tools do police need to crack down on drugged drivers? And what does recreational legalization mean for Maine’s medical marijuana program?
Those issues and others are addressed below, beginning with the question on many Mainers’ minds …
When will it become legal?
“I just think there are a lot of problems with this law that are not minor,” said Mills, the state’s top attorney. “It’s going to take a lot of time and expertise to address these.”
The ballot initiative allows residents over age 21 to possess up to 2.5 ounces of pot as well as six flowering plants at home. That portion of the law is due to take effect 30 days after LePage signs off on the election results – something he is obligated to do within 10 days of the secretary of state’s certification of the vote tally, which happened Dec. 21.
Mills is joined in that sentiment by Thibodeau, who insisted that a yearlong moratorium – an idea likely to face strong opposition from some legislators – would give lawmakers time to “put some meat on the bones” of a complex issue.
“I don’t think anybody who voted for this really wants minors to have access to marijuana-laced candy, but that is the reality,” Thibodeau said, referring to perceived loopholes in the ballot initiative. “So we need to have time to craft reasonable rules so that some of these unintended consequences don’t happen.”
Democratic House Speaker Sara Gideon of Freeport said the issues of minors’ access to marijuana and edibles attractive to children – two top concerns raised during the campaign – need to be “fixed immediately.” But the House’s top Democrat wasn’t prepared last week to endorse a moratorium.
“We definitely want to take the time to put people on task” implementing the law, Gideon said. “We haven’t reached agreement on what a moratorium is or should look like. So that is not something that there is consensus on and we continue to talk about it.”
Legalization proponents already are pushing back against calls for delayed implementation of the ballot initiative.
“We hope they work within the constraints of the initiative, and the initiative says nine months,” said David Boyer, who led the legalization effort for the Campaign to Regulate Marijuana Like Alcohol. “We aren’t reinventing the wheel here. There are four other states that did this before this election cycle.”
How to proceed?
Lawmakers and state officials first will have to draw up complex regulations dictating everything from who will license and inspect marijuana businesses to the standards police will use to decide whether someone is driving under the influence of pot.
Before even getting to that point, however, lawmakers will have to agree on how to proceed.
Thibodeau wants to create a special legislative committee charged with reviewing the ballot initiative and the myriad of marijuana-related measures already piling up, rather than scatter them among the traditional committees that oversee crime and punishment, taxation or agriculture.
The special committee also won the endorsement of the coalition of groups that fought legalization and are now pledging to dog the implementation process.
“I’ve been in the field of addiction for over 10 years and, as I’ve talked to my colleagues, we are still uncovering different angles that we think are going to need to be addressed,” said Scott Gagnon, chairman of the No on 1 campaign. “So I think that is going to be the best way forward, to have as many voices at the table from as many perspectives as possible to make sure that this is a fully informed process that protects all interests in this effort.”
Mills plans to introduce legislation creating a Cannabis Advisory Commission with a dozen or so members with expertise in different fields. Others have suggested the formation of a task force similar to the one that recommended ways to implement a system of regulated medical marijuana dispensaries and caregivers in 2009-10.
Gideon said all of those options are under discussion among leadership in the Democratic caucus.
Who will regulate pot?
Under the initiative, the Maine Department of Agriculture, Conservation and Forestry has nine months to “adopt rules for the proper regulation and control of the cultivation, manufacture, distribution, sale and testing of retail marijuana and retail marijuana products and for the enforcement.”
Yet Maine’s agriculture commissioner, Walt Whitcomb, said before the November vote that his department lacked the tools, expertise and financial resources to regulate the marijuana industry. And Mills has called the nine-month timeline “unrealistic,” given the Legislature’s statutory obligation to review major rules.
LePage has suggested a more logical home could be the Maine Bureau of Alcoholic Beverages and Lottery Operations, or BABLO, which licenses alcohol sellers and regulates the liquor market.
“It’s going to be $5 (million) or $6 million” to house the program in the agriculture department, LePage said. “Or they can send it over to BABLO and maybe we can get away with maybe just hiring more people because the infrastructure is already there.”
Dan Walker, an attorney who represents the state’s largest medical marijuana dispensary operator, Wellness Connection, pointed out that BABLO is housed within the same state agency that includes Maine Revenue Services. That agency will be responsible for collecting a sales tax on retail marijuana sales.
“We do believe a better place to regulate this is where liquor is regulated,” said Walker, who has been involved in medical marijuana policy for years. “They’ve got all of the tools right there.”
And then there is the question of how to pay for that state oversight.
The law proposes a 10 percent tax on retail sales of marijuana and marijuana products, although some lawmakers believe the percentage should be higher. The tax rates in the first four legalization states – Colorado, Washington, Oregon and Alaska – range from 25 percent to 37 percent.
All tax revenue from marijuana will flow into the state’s General Fund but cannot be used to directly fund any new programs, according to the ballot initiative. Instead, the Maine Criminal Justice Academy in Vassalboro can use funds from the marijuana sales tax “for the purpose of training law enforcement personnel on retail marijuana and retail marijuana products laws and rules.”
LePage has said he won’t include any money in his upcoming two-year budget for marijuana, leaving that task to the Legislature.
Minors and marijuana
Thibodeau’s reference to “marijuana-laced candy” alludes to two issues likely to be near the top of legislators’ agendas in the legislative session that gets underway early next month.
The campaign took a serious hit in late October when Mills and other opponents said the ballot initiative, as written, would eliminate laws prohibiting minors from possessing marijuana even though the law only legalizes pot for those age 21 or older. That’s because the initiative repeals a provision of state law prohibiting marijuana possession that is referenced in the juvenile code.
Lawmakers also will need to approve language making it clear that edible marijuana products cannot be sold in shapes, colors or configurations that would be appealing to children, such as gummy bears. As it stands, the initiative’s accompanying legislation contains vague language that “a retail marijuana product may not contain an additive designed to make the product more appealing to children.”
Gideon predicted lawmakers will expeditiously resolve the concerns over minors and edibles.
“I do think that we can deal with those two issues quickly,” Gideon said. “I believe they are fairly straightforward.”
Edibles have emerged as one of the trickier issues elsewhere, forcing lawmakers and regulators to play catch-up with the industry.
While Washington prohibited the sale of candy-like marijuana products soon after pot shops opened in 2014, it took Colorado lawmakers two years after retail sales began to pass a law banning the sale of marijuana-infused gummies in the shape of animals or fruit.
More recently, Colorado began requiring all edibles to be stamped with the letters “THC,” a reference to the presence of tetrahydrocannabinol, the psychoactive substance in marijuana. Maine’s ballot initiative also proposes the use of a “universal symbol” on the labels of marijuana products.
The Colorado experience
In the four years since Colorado and Washington voters legalized recreational marijuana, the two states have become both regulatory trailblazers and bellwethers of implementation hiccups.
“These things are not clean to start. They just aren’t,” said Andrew Freedman, who has been responsible for helping oversee Colorado’s bumpy transition to legal pot as the state’s official “marijuana czar.”
Like Maine, Colorado already had a well-established medical marijuana industry when voters elected to make pot accessible to all adults. Yet it still took nearly 13 months after possession became legal for Colorado’s first state-licensed pot shops to open up because it took time to write the regulations.
“There is nothing more important than bringing everyone to the table,” Freedman said of the implementation process.
Freedman spends a lot of time these days talking to policymakers, government officials and journalists in other states now taking on the legalization challenge. His three major recommendations:
• Convene that large table of interested parties, including police, health experts, concerned parents and medical marijuana patients.
• Gather lots of marijuana-specific data on usage, impaired driving and other issues both before legalization to establish a benchmark and again afterward.
• Pay close attention to the rules governing home-growing of marijuana in order to avoid pot being sold out-of-state illegally.
Colorado set up a 24-member implementation task force that, after roughly four months of work, issued a list of 58 recommendations for regulating the newly legalized industry. Freedman said many of those members have since been called upon to help resolve issues that emerged later, and department heads whose work involves marijuana still meet every two weeks to discuss the legalization rollout.
“I think we are fairly far along in the rollout of it,” Freedman said. “The only place where I think we haven’t made as much progress is we have looser home-grown laws that organized crime has really taken advantage of.”
The three other states that legalized marijuana on Nov. 8 – Massachusetts, California and Nevada – are approaching the issue in slightly different ways.
In Massachusetts, where legalization passed 53 percent to 47 percent in November, a three-member Cannabis Control Commission will oversee regulation and enforcement of pot shops and other marijuana-related establishments. But the ballot initiative passed by Massachusetts voters also creates a 15-member Cannabis Advisory Board that will provide advice based on research.
The Cannabis Control Commission would have until January 2018 to begin issuing licenses for retail sales.
California voters also legalized marijuana on Nov. 8 by an even larger margin. And because California’s 39 million residents represent one of the world’s largest economies – actually outnumbering the combined population of the other seven states that have legalized recreational marijuana – there has been widespread speculation about whether the national debate over pot’s status as an illicit drug has reached a tipping point.
California already has a massive medical marijuana industry and flexible rules that make it relatively easy for residents to qualify as a medical user. Even so, the state’s Bureau of Marijuana Control has until January 2018 to begin issuing licenses to businesses selling marijuana for recreational use.
In Nevada, the state Department of Taxation will be charged with regulating marijuana businesses. Yet for the first 18 months of the program, only registered medical marijuana establishments already operating in the state will be allowed to apply for licenses to sell, produce or grow pot for recreational purposes.
Although LePage recently said the state could eliminate Maine’s regulated medical marijuana program, advocates for legalization and representatives of the medical marijuana community have pushed back hard against such suggestions.
Mainers with doctor’s authorization to use medical marijuana can currently purchase the product from caregivers or dispensaries licensed by the state.
Hilary Lister, an advocate for caregivers in Augusta, said eliminating the medical marijuana program could result in patients losing access to specific strains of the drug that have proven effective at treating their illnesses. Also, Lister and others warned that pediatric patients would be barred from using marijuana as medicine, assuming lawmakers address the flaw in the ballot initiative regarding possession by minors.
“We really want to make sure the patients who are most vulnerable right now – the children, the people who are at end-of-life care who need access to this as a real, safe medicine – can continue to have that access and not become criminals,” Lister said.
Perhaps one of the biggest challenges facing lawmakers will be crafting regulations surrounding impaired driving and other public safety measures.
Earlier this year, the Legislature failed to pass a bill that would have set a blood level limit for marijuana for police to determine impairment. While police could still charge someone with impairment based on field observations, law enforcement officials say a blood level limit will be desperately needed after legalization.
In both Washington and Colorado, drivers with 5 nanograms of active THC per milliliter of blood can be charged with driving under the influence.
A study by AAA released last May found that fatal crashes involving drivers who used marijuana more than doubled – jumping from 8 percent to 17 percent – in Washington state between 2013 and 2014. The study also called blood limits for impaired driving from marijuana “arbitrary and unsupported by science.”
Maine’s attorney general, meanwhile, said the legalization ballot initiative is filled with gaping public safety holes that will have to be filled.
“There are no penalties in this. It’s a very odd way to draft a law,” Mills said of the ballot initiative’s accompanying legislation. “Theoretically, a person could be driving an SUV full of kids to a soccer game while smoking hashish and this law does nothing to prevent that.”