This Is Marijuana Legalization’s Biggest Problem

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For all the noise coming from dog-whistling Attorney General Jeff Sessions, America’s war on marijuana, medical and recreational, is currently at a standstill. Whether the ceasefire is the prelude to a lasting truce or a temporary calm before a shitstorm is up to the states—who, if local and federal police are to be believed, and if the federal government is to be taken seriously, are leading us towards a weed war.

We’ve been in a lull ever since 2013, when the administration of newly reelected Barack Obama, fresh from not interfering in Colorado and Washington’s marijuana legalization efforts, gave itself cover with the “Cole memo.” The Cole memo is the list of non-binding Department of Justice enforcement priorities—which Sessions himself recently declared “valid,” despite a lifetime spent detesting drug policy reform almost as much as he’s resented voting-rights efforts.

As long as the states kept tight control on things, kept weed out of the hands of kids and cartels, and prevented marijuana grown under state authorization from being smuggled and sold illegally in other sates, everything would be fine, and state-legal cannabis business would have no trouble with federal gendarmes. This served as the Obama administration’s justification for a hands-off approach, but the problem is that law enforcement is doing a very bad job at keeping marijuana within state borders, several recent reports compiled by state and federal police say.

Marijuana grown in Oregon under the auspices of the state MMJ program is ending up in “Illinois, Minnesota, New York and Florida” and other states on the eastern seaboard and in the southeast, according to a recent report compiled by the Oregon State Police and leaked to the Oregonian newspaper. But if you listen to the feds, one-third of all the cannabis seized nationwide originated in California and Colorado—with the U.S. Postal Service the preferred method of shipping cannabis out of state, according to a multi-agency report released last year.

The main reason for this, police say, is that the states are producing far more cannabis than they can consume. All that “extra” weed is then going to underprivileged cannabis consumers in other states.

According to Oregon state police, the state’s cannabis industry has the capacity to produce as much as $9.4 billion worth of surplus cannabis. With no domestic buyers, that’s pot ready to export to other states.

This is a colossal amount of cannabis—almost ten times as much marijuana as was bought legally in Colorado last year, and more than all the cannabis sold legally in California. For these reasons, it is almost certainly a gross overestimation from law enforcement, who are historically prone to hyperbole when “informing” the public about the size, value and impact of drug busts.

At least some of the police’s fuzzy math is obvious. For instance, the Oregon report bases its estimate on the state’s total plant production on an average of 2.6 pounds per plant. That’s a moderate yield for a mature plant—but the plant estimate is based on seizure statistics. Many plants seized are clones, teens or plants that would never have been harvested in the first place. That estimate itself—between 265,000 and 1.8 million surplus pounds, a variance of almost 800 percent(!!)—is also so wide as to be worthless.

Still, with economists and law enforcement agreeing that there is far more marijuana grown than is sold, it’s hard to argue with the conclusion that “[l]aw enforcement is unable to keep pace with out-of-state cannabis diversion.”

So what’s next? The marijuana industry won’t like it, but if a crackdown comes, it’s most likely coming on medical marijuana. Unlike recreational cannabis, medical marijuana in Oregon is not subject to seed-to-sale tracking that requires producers to account for every gram of product grown. And it was medical marijuana producers who were specifically called out for allowing their product to be steered out of state by Oregon state police.

There’s precedent for crackdowns on medical marijuana. In California in 2011, it was medical marijuana dispensaries which appeared to be following state law that were the targets of a crackdown led by the U.S. Justice Department, which spent several years in an ultimately failed effort to shut down the state’s biggest dispensary.

There is some good news buried in all this: domestic marijuana production is pushing “transnational cartels” out of the cannabis business. Evidence indicates U.S. based cannabis trafficking networks have replaced transnational cartel operations,” according to the Oregon report, which then goes on to castigate legal marijuana industries as “cover” for illegal activity.

That’s been the law enforcement line for years.

While it’s almost certainly overblown, there is no doubt that cannabis grown with legal cover finds its way across state borders. This is one area where the marijuana industry and drug cops are on the same side. If the diversion problem gets worse, it’ll be a handy excuse for a federal crackdown—and nobody growing cannabis sent anywhere wants that.

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