Marijuana Legalization’s Dirty Little Secret

“…[C]an we do away with [the] Oregon Medical Marijuana Program if we’re going to legalize marijuana?” asked State Senator Fred Girod at a recent hearing. “It only makes sense from an economic perspective to do this and does the act prohibit us from doing that?”

The representative from the state commission charged with regulating recreational marijuana answered, “It is a policy question that is going to be on the forefront of many minds… [I]t is a policy issue that many agencies, that I’m sure the legislature will be looking at for the reasons you just described.” He went on to say, “We’re aware of many, many conversations going on about efficiencies potentially to be gained by some regulatory consolidation at every level.”

Now that Oregon has passed a recreational marijuana law, supporters of the existing medical marijuana law are concerned about possible changes to the Oregon Medical Marijuana Program (OMMP) by the Legislature. Following the passage of I-502 that legalized marijuana in Washington two years ago, their legislature tried, but failed, to make wholesale changes to their medical law. In Colorado, their recreational program unfolded through the existing medical marijuana growers and dispensaries.

If medical supporters want to keep the OMMP exactly as it is, they are going to have to come up with some very compelling reasoning for the state government to support the maintenance of two parallel production, processing, and retail systems for a fungible product and two separate bureaucracies—Oregon Health Authority (OHA) and Oregon Liquor Control Commission (OLCC)—performing similar regulatory functions.

This is the dirty little secret of legalization in a medical marijuana state. Colorado is a bit of an outlier, as it had the most entrenched regulatory agency and structured retail system of all. But even while its production, processing, and retail systems remain separate and redundant (to the point of one dispensary building having two entrances—one medical, one recreational—selling the same “Super Silver Haze” from two separate stockpiles at two separated counters), at least Colorado’s Medical Marijuana Enforcement Division became the single entity regulating marijuana statewide.

Otherwise, passing recreational in Washington and Oregon forces the legislature and people in general to question why there must be two seemingly redundant marijuana distribution systems. (Alaska has no medical distribution system and Washington DC hasn’t yet passed a recreational distribution system.)

Now, the smart thing to do would be to recognize this reality beforehand. Understand that it is all one plant and we are all its consumers.  Recognize that medical consumers indeed have greater and more distinct needs while crafting a legalization plan that blends in existing medical marijuana.

But, politically, that’s impossible. In Washington and Oregon, anybody who broached the subject of legalization was met with a defiant “IT BETTER NOT CHANGE MEDICAL IN ANY WAY!” from medical consumers and providers. That’s understandable (I Gots Mine) – why would anyone want to sacrifice their hard-won political gains, especially when one’s health and even life depends on them?

So legalizers are then forced to write a legalization plan that pointedly ignores the medical elephant in the room. “I-502 changes medical marijuana in no way.” “Measure 91 does not affect the medical marijuana program” (it says so three times!) But those are very calculated things to say. They are certainly not “after passing this, medical marijuana will never change.” Technically, neither measure had any text that altered, struck, or amended any text from the current medical marijuana laws.

By not addressing medical marijuana, passage of legalization sets up two parallel systems, inviting critical evaluation of the need for both.  This is especially relevant in Washington, where even had legalization not passed their lack of medical regulation was facing intense legislative scrutiny.  Had this reality been recognized, the smart thing to do for medical supporters would have been support the crafting of the legalization initiative to absorb and protect the medical program. Framed correctly, it also would have become a selling point to the voters who support medical marijuana for the truly sick but also think many medical users are recreational fakers.

State Senator Jeanne Kohl-Welles in Washington recognizes this new reality and has put forth a bill to fold medical into I-502. She’s killing collectives (which are mostly de facto dispensaries), but also removing the artificial limits Mark A. R. Kleiman (the state’s consultant on marijuana, or M.A.R.K.) preferred on the number of pot shops and allowing all existing dispensaries to apply to be pot shops. She’s allowing all adults the right to home-grow six plants. She’s changing ridiculous M.A.R.K.-preferred over-taxation at three tiers to a single, lower tax. She’s making high-CBD products tax-free and creating a voluntary patient registry for those who want a medical tax break on high THC products.

Oregon’s medical supporters would be wise to think about how to make recreational support medical, rather than trying to defend an absolute wall separating the two. We already have a registry, so make that the pot shop $35/oz tax rebate card. Allow current medical dispensaries to become pot shops. Make all testing apply to all marijuana (why the hell should medical or recreational consumers choose from more dangerous products than the other?)  Mandate (a la Berkeley, California,) that a certain amount of top-shelf product is donated by pot shops to provide free or lower-cost product to the impoverished medical consumers.  Maintain higher home grow limits for medical users, allow caregivers to grow for four patients, but beyond that, big grows need to follow the same rules—no more medical growers harvesting patient cards to make big grows to sell to pot shops (and, perhaps, some out-of-state sales, too.) Make clear that the right to home grow is not infringed by living within 1,000 feet of anything.

If we agreed to and fought for that, I bet we’d get most of it. If we don’t and fight for parallel redundancy, I bet we end up with far less on the medical side. California, Nevada, Arizona, New Mexico, Maine, Vermont, Rhode Island, and Massachusetts reformers ought to think long and hard about their legalization plans for 2016 and make sure they address, not ignore, medical marijuana.

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