By: Richard M. Blau, chair of GrayRobinson's Alcohol Beverage and Food Department
Four states put ballot proposals before voters that promised to legalize marijuana for medical or recreational use in the November, 2018 elections. Three out of four approved their legalization measures. Additionally, several other states either took action, or are taking action, that will further impact the legalization of cannabis in America.
Here’s a quick summary of the most meaningful results from last night’s balloting.
Michigan voted to approve a ballot measure by a solid 56-44 percent margin, making it the first state in the Midwest to approve recreational usage for adults, joining nine other states and the District of Columbia. Michigan’s Proposal 1 allows adults 21 and over to buy, grow, use and possess marijuana for recreational purposes. Under the measure, adults can be in possession of 2.5 ounces of marijuana, a provision similar to the state’s medical marijuana law that was approved in 2008. Adults can also grow up to 12 marijuana plants in their homes for personal use. Additionally, the initiative legalizes the cultivation of industrial hemp, which can be used to make textiles, biofuels and foods. Marijuana sales will be accompanied by a 10 percent excise tax, revenue that will be used to fund research, education and the repair and maintenance of roads and bridges.
A recent study from the national marijuana consulting firm VS Strategies of Colorado projected that marijuana legalization in Michigan would eventually lead to $130 million in new tax revenue for the state, with an industry that could grow to a value of $800 million by 2024.
Missouri voters had three ballot initiatives to consider regarding medical marijuana: two constitutional amendments ? Amendment 2 and Amendment 3 ? and an initiative that would change state law, Proposition C. All three proposals would have legalized the use, purchase and possession of marijuana for medical purposes and would allow the state to set up a regulatory framework for licensed dispensaries to operate in the state. But they each differed considerably in their approach to taxes, home growing and qualifying conditions.
Voters approved only one of the measures: Amendment 2, which garnered 66% of the vote and amended the state constitution to allow doctors to prescribe cannabis for a slate of 10 medical conditions. Sales will be subject to a 4 percent state tax, with proceeds going to fund services for military veterans. Also, unlike the other two ballot measures, Amendment 2 allows home-growing of marijuana; patients could grow up to six plants, while designated caretakers are allowed to cultivate up to 18 marijuana plants.
Utah voters approved Proposition 2, which allows patients to legally use, possess and purchase marijuana for medical purposes in connection with the treatment of illnesses such as HIV, multiple sclerosis, post-traumatic stress disorder, epilepsy, autism, cancer, Alzheimer’s disease and others. During any 14-day period, a state-licensed cardholder could purchase as much as two (2) ounces by weight of marijuana. The measure also bans the smoking of marijuana, but does allow vaping, marijuana-infused edibles and other means of consumption.
Patients who qualify can now apply for a medical marijuana card from their doctor. Doctors would be restricted from recommending a card to more than 20 percent of their patients. Beginning in 2021, cardholders who live more than 100 miles from a state-licensed dispensary would be allowed to grow as many as six marijuana plants for personal medicinal use.
The new law limits the number of dispensaries to no more than one per county, except in larger counties where the state can issue more licenses depending on the size of the population.
Utah Gov. Gary Herbert (R) has called for a special session of the Utah Legislature after November’s election to pass a compromise legislative bill that would legalize medical marijuana in the state but with some differences from Proposition 2. The most significant changes in the compromise bill include: some qualifying conditions would be removed while others would be added, local jurisdictions would have more power to ban dispensaries in their regions, dispensaries would be forced to have a licensed pharmacist on staff and the shops would be renamed to pharmacies, edibles would be banned along with smoking but other ways to consume cannabis would still be allowed. The previously-negotiated bill would require a full vote in the state legislature and a signature from the governor to become law. The bill reportedly has support from a number of key stakeholders in the state including advocates, policymakers and the Mormon church. It’s unclear, however, whether the legislative differences from Amendment 2 would draw litigation.
Florida voters passed Amendment 9 with a 68.8% supermajority of votes. The ballot initiative amends the state constitution to prohibit offshore drilling for oil. However, it also bans the use of vapor-generating electronic devices in enclosed indoor workplaces. The measure would make exceptions for the use of vapor-generating electronic devices in: (1) private residences that are not being used for commercial childcare, adult care, or healthcare; (2) in retail tobacco and vapor-generating electronic device shops; (3) designed smoking guest rooms in hotels; and (4) stand-alone bars.
Amendment 9 defines vapor-generating electronic devices as "any product that employs an electronic, a chemical, or a mechanical means capable of producing vapor or aerosol from a nicotine product or any other substance." (Emphasis added). The definition would include electronic cigarettes, electronic cigars, electronic cigarillos, electronic pipes, and other similar devices or products, replacement cartridge for such devices, and other containers of a solution or other substance intended to be used with or within the devices.
Although the ballot initiative made no reference to marijuana, CBD, or any similar cannabis-related product, the prohibition is sufficiently broad to encompass all of these substances. And it’s now a part of the Florida Constitution.
Finally, it is worth noting that North Dakota’s ballot measure to legalize recreational marijuana failed. The legalization ballot garnered 59.5% of the vote, which was short of the supermajority required for passage.
These victories for cannabis legalization are building on what already has proven to be a significant year for cannabis legalization:
- In January of 2018, California – already the largest legal marijuana market in the U.S. -- licensed its first recreational marijuana shops.
- That same month, Vermont became the ninth state in the nation ? and the first to do so through the state legislature rather than referendum ? to legalize recreational marijuana.
- Oklahoma became the 30th state to legalize marijuana for medical use in June of 2018.
And while New Jersey lawmakers missed a deadline to legalize recreational marijuana in October of 2018, they have vowed to vote on the legislation before the end of the year.
Perhaps most noteworthy, Canada legalized marijuana in July of 2018, and opened its first recreational marijuana dispensaries in October, becoming the largest legal marijuana marketplace in the world.
In real time, the Gallup organization reports that two in three Americans support legalization. Moreover, 33 states across the nation plus the District of Columbia now have legalized marijuana in some form. Ten of those states, plus D.C., now allow recreational use of marijuana. Recreational states like Colorado, the first to establish a regulated adult-use marijuana marketplace, have used the past few years to develop a record of successes that rebut some of the anti-legalization arguments predicting that legalization of marijuana would result in disaster.
Yet, despite states’ efforts to advance the legalization of anew industry that promises jobs, tax revenues and the replacement of an illegal market with a legal industry, marijuana remains a prohibited Schedule 1 substance under the federal Controlled Substances Act. Numerous Congressional efforts to advance legalization, even incrementally, have been stalled by the Republican majorities in the House and Senate. Although President Donald Trump has signaled support for possibly softening the federal ban on cannabis, U.S. Attorney General Jefferson Sessions continues to wage a war of zero tolerance for marijuana.
Whether the latest election results will work a change in Washington D.C. remains to be seen.