It was big news when Washington State and Colorado passed laws legalizing marijuana in November 2012, becoming the first jurisdictions in the world to legalize production and sale for non-medical purposes. Washington State is back in the news again, just 20 months later, for actually having issued licenses to retail marijuana. However, only 24 licenses have been issued, less than ten percent of the 334 deemed sufficient to meet state demand, and still there are some concerns about insufficient supply coming from licensed producers. Meanwhile, Colorado opened its stores on New Years Day and Uruguay made a come-from-behind effort to legalize and implement marijuana legalization in early 2014.
That kind of delay goes against the clichéd protest phrase “What do we want? When do we want it? Now!” It’s worth reflecting on what exactly was happening in the interim, which in the jargon of regulatory bureaucracy is referred to as rule-making.
The text of I-502 gave no indication that Washington would be slow out of the gate, given that the law successfully avoided re-inventing the wheel. The regulatory structure for marijuana legalization imitated what was already in place for alcohol. The responsibility for setting and overseeing regulations was given to the Washington State Liquor Control Board, which represented the experienced hand. Just like alcohol, marijuana was to be produced, processed, and sold only by licensed retailers. Administrative burdens for regulating marijuana were actually less intensive in some ways, given that as recently as 2012 Washington State maintained a state monopoly on alcohol retail stores, while I-502 allowed the state to outsource retail operation to private firms.
Transforming a law into an actionable regulatory system is harder than it looks. Voter initiatives such as Initiative 502 are written to be simple and plain-stated enough to pass at the ballot box. Implementation requires countless more details. Regulators in Washington faced the difficult task of deciding those details amid passionate public concern, a quickly growing and profit-driven industry and its lobbyists, and an involved but sometimes sensational national press (locally-reported stores were remarkably more thorough and less sensational).
Of the nearly endless list of regulatory decision to make, most are mind-numbingly boring to anyone not accustomed to the process. But a few of those difficulties are quite interesting and even delightfully ironic (not the least of which is that Washington legalized “marijuana,” rather than “cannabis”, as the plant is known by scientists).
For instance, marijuana seeds remain illegal under all circumstances. The marijuana legalized under I-502 refers specifically to the flower, leaves, and stalk. This isn’t such a big problem in the long run, given that most marijuana plants are cloned rather than planted in order to preserve the genetic integrity of those breeds with the most desirable psychoactive properties and largest yields. All that requires is cutting off a small portion of an existing plant and putting it into new soil. During the initial roll-out, however, it posed a terrible contradiction: though growing marijuana was legal, there was no legal method to actually start the process. The ultimate solution undertaken by Washington State was to implement what some jokingly called a “path to citizenship.” Formerly illegal plants were to be inspected by the Liquor Control Board (exactly what-for they were being inspected is unknown to me), and if those plants had yet to begin to flower, LCB staff would give them their legal blessing. This is something like a baptism, but accomplished without having to invoke a higher power.
Hashish remained illegal, at least according to some lawyers’ interpretations. I-502 was very specific in legalizing two types of marijuana: “usable marijuana,” defined as herbal plant material, and “marijuana extracts and infusions”, which referred to the process of extracting the psychoactive chemicals from a marijuana plant either for sale as a liquid or injection into an edible product. According to some sufficient proportion of lawyers, hashish is neither of these, even though it is composed entirely of marijuana and is in some ways more pure than an edible product. Enforcement is another issue, however, and it’s not clear to me whether there’ll be much of an effort to actually detect and stop vendors selling concentrated product.
Whether to allow outdoor production was another big hang-up, though it’s not clear why. Some in law enforcement were concerned that allowing production outdoors would create opportunities for leakage (via theft or intentional diversion) and require law enforcement to spread its attention over a much larger area. It wasn’t until June 2013 that Washington relented to pressure from outdoor growers in Eastern Washington and arguments on efficiency (though the environmental consequences were sometimes exaggerated).
The law calls for testing and regulation of the content of all marijuana products. This is relatively easy for herbal product, which is amenable to lot-testing. It’s easy for a regulator to pick up a large bag of marijuana from a producer, reach in and grab a random flower, and grind it up for testing, and in fact this practice was already popular among medical producers in and outside of Washington. Testing for edibles is much more difficult. Reaching into a bag of brownies and testing one doesn’t tell you much about what’s in the others. Nor does it to sufficient to test the intermediate chemical extract, since a processor could still over-, under-, or inconsistently dose it into product. This happens quite often, and Annie Lowrey has written a great article on that in the New York Times.
The law requires that marijuana is produced without any harmful chemical agents. The difficulty is that marijuana production has often become a chemically-intensive process. Producers use insecticides to prevent mites from ruining a whole crop, fertilizer to ensure high yields, and a handful of other chemicals to prevent fungus and mold. The job of regulators was to prevent any and all chemicals that were environmentally destructive or hazardous to health. Normally, this falls into the hands of the USDA. But because marijuana remains a federally illegal substance, the USDA kept its hands off the issue, and regulators had to make up their own knowledge base.
But for me, the single most interesting moment came in July at a press conference at the top floor of the Columbia Tower. Jamon Shively, former Microsoft manager and then-decided pioneer/narcotics trafficker, announced his plans for a national marijuana brand. This was complete with a hipster-friendly (i.e. masculine, old-timey, and mustachioed) logo and namesake, Diego Pellicer, Jamon’s grandfather and a marijuana producer in his old time, as well as a guest appearance and tacit endorsement by Vicente Fox, former President of Mexico. The reporters in presence, of which there were many, vascillated between buying into the hype of a brave emerging brand and asking Shively clarifying questions, such as: “So what you’re announcing is a conspiracy to traffic Federal narcotics?” To which Shively responded: “I’m announcing a conspiracy to obey Federal law.” Exactly how that would play out, Shively didn’t say, but he promised that his lawyers assured him it would all be legal. For a few weeks after the press conference, Diego Pellicer splashed headlines with sensational quotes: asked what he would do if the Federal government came after him, he paraphrased Obi-Wan Kenobi’s “Darth, if you strike me down I will become more powerful than you can imagine.” (Another of Shively’s big headlines came from a post from this very blog, and can be found here or by googling “insensate greedhead.”) It was only a few weeks before Diego Pellicer went silent, though its website is still operating.
So maybe there’s one thing in common between Diego Pellicer and the Washington State Liquor Control Board. Both were assured that what they were doing was entirely legal (though perhaps Pellicer’s were wrong), but doing the actual trail-blazing and underneath the shadow of Federal prohibition was pragmatically much more difficult. And both have lost a ton of money by not having already set up business – Colorado expects to bring in $98 million in tax revenues this year, and Washington has one-third more people and takes roughly double the tax cut. Regardless, for Washington State, late is better than never, and marijuana legalization is still a very big deal. July 2014 is still a much earlier date for marijuana legalization than most people would have estimated just a few years ago.