Weed is winning, but the train could still go off the tracks
November 28, 2016
5 challenges facing states that wade into legal marijuana
DENVER — Four more states just legalized marijuana for all adults, and more than half the states now allow pot use by people with a long list of ailments. But don’t break out the Goldfish and Cheetos just yet.
That’s what the Colorado governor famously said after his state and Washington became the first to legalize recreational pot in 2012.
The joke belies an important truth about the nation’s evolving marijuana experiment: It’s too soon to say how these experiments will turn out. States wading into legal weed are in direct defiance of federal drug law, so they’re on their own when it comes to regulating a drug that had been illegal for almost a century.
A look at the top issues facing states that are moving toward legalization:
ELIMINATING THE BLACK MARKET
The black market for pot does not go away just because the drug is legal under certain circumstances.
States facing a shifting marijuana regime want to eliminate corner drug dealers and keep drug cartels out of the legal drug game. To do that, governments need to set tax rates that are high enough to cover regulatory costs but not so high that drug dealers decide to stay in the shadows, where they go untaxed and unregulated.
The current marijuana states tax pot at about 30 percent or more. The result is a nagging black-market problem, so new marijuana states may consider a different approach.
KEEPING POT AWAY FROM KIDS
When it’s illegal to give weed to anybody, there’s no need to make it a crime to give marijuana to a minor. States that legalize pot will need to look at their alcohol codes and create new crimes for sharing marijuana with minors or anyone else not authorized to have it.
Public health advocates will call on their states to do more work tracking how many kids are using pot, through youth surveys and by adding school health workers and counselors.
KEEPING HIGHWAYS SAFE
States that have legalized pot have seen more drivers arrested for driving high, but overall traffic safety and fatality rates in those states have dropped or remained flat.
Expect to see new marijuana states ramp up police training for spotting stoned drivers. It’s also possible that drivers will complain about getting pulled over more often in neighboring states by officers on the lookout for impaired motorists.
CONFRONTING EDIBLES AND CONCENTRATES
Smoking doesn’t become any less stinky when marijuana becomes legal.
But states with legal marijuana markets have been caught off guard by the popularity of edible and concentrated marijuana, which can be incorporated into a dizzying variety of products as diverse as cookies, pasta sauce and skin cream, even personal lubricant infused with cannabis.
Concentrated pot, as the name suggests, can be quite strong. So states that have joined the marijuana experiment will want to be ready for more calls to poison control, more people showing up at emergency rooms complaining of overindulging in pot and more kids arriving at school with not-so-innocent brownies.
KEEPING CULTIVATION GREEN
Public officials who don’t want to see fields and backyards full of weed often try to force production into greenhouses, warehouses and basements.
That keeps pot out of public view, but growing it that way requires enormous amounts of electricity and water. And the plants are more susceptible to disease and pests.
Marijuana states have to wrestle with regulating production so that the weed industry doesn’t sap energy and water better used elsewhere. They will also need to write their own rules when it comes to pesticides.
— Kristen Wyatt
DENVER — Weed is winning in the polls, with a solid majority of Americans saying marijuana should be legal. But does that mean the federal government will let dozens of state pot experiments play out? Not by a long shot.
The government still has many means to slow or stop the marijuana train. And President-elect Donald Trump's nomination of Alabama Sen. Jeff Sessions to be the next attorney general has raised fears that the new administration could crack down on weed-tolerant states 20 years after California became the first to legalize medical marijuana.
"We need grown-ups in charge in Washington to say marijuana is not the kind of thing that ought to be legalized. It ought not to be minimized, that it's in fact a very real danger," Sessions said during an April Senate hearing.
The Controlled Substances Act bans pot even for medical purposes. A closer look at some of the government's options for enforcing it:
TAKE 'EM TO COURT
The government rarely invokes its authority to sue states, but it's the quickest path to compliance. The Justice Department could file lawsuits on the grounds that state laws regulating pot are unconstitutional because they are pre-empted by federal law.
Something similar happened in 2010, when the Justice Department successfully sued Arizona to block an immigration law that conflicted with federal immigration law.
Federal courts can also compel action, not just block it, as in Kentucky last year, when a county clerk was ordered to issue marriage licenses to same-sex couples following a landmark Supreme Court ruling.
Twenty-eight states and Washington, D.C., allow marijuana for medical or recreational purposes. The government has yet to sue any of them.
RAID POT BUSINESSES
The government could avoid court entirely if it doesn't mind a more expensive option: law-enforcement raids.
The Drug Enforcement Administration retains the legal ability to shut down anyone selling or growing pot, but there has been no coordinated federal attempt to close pot producers in multiple states. The agency has said repeatedly that it does not have the resources to pursue ordinary pot users.
Any change in that approach would likely require more money from Congress, which just saw many of its constituents vote in favor of legalization. And a federal agency probably will not spend limited resources busting people growing pot for personal use, said John McKay, a former U.S. attorney in Washington state.
"Who is going to stop people from smoking pot in a residence in Denver? Federal agents?" he said. "They are going to stop doing terrorism investigations and start arresting people for pot? That, to me, is crazy."
Still, a series of raids could upend the marijuana landscape and chill investment in the fledgling industry.
It's the biggest complaint in the weed business: taxes.
Businesses selling marijuana cannot use tax breaks or incentives offered to other small businesses, and some of them say they pay 80 percent or more of every dollar on taxes and fees. They have limited access to banking because many financial institutions are leery of the paperwork they are required to file on clients working with marijuana.
Colorado officials tried last year to ease the banking burden by setting up a special credit union to safely handle pot-shops money, only to see the Federal Reserve Bank and federal courts block the effort.
As long as Congress and the new administration leave those hurdles in place, the marijuana business will grow haltingly. Voters may generally support pot legalization, but few have sympathy for a pot entrepreneur unable to become a multimillionaire because of banking obstacles.
Government officials who are skeptical of marijuana but also leery of going against public opinion can use regulation and red tape to slow commercial pot.
Legalization opponents frequently decry the strength of today's marijuana, an argument that provides political cover for pot skeptics who once used the drug themselves and gives legalization opponents a backdoor route to blocking weed.
In Colorado, for example, marijuana skeptics nearly succeeded earlier this year in getting state lawmakers to cap commercial pot potency. The proposal would have banned some 80 percent of the pot products on shelves.
Delays can be just as damaging. Even in Colorado, the first state out of the gate with recreational stores, businesses complain of long waits to get permits or licenses. A few shops were hobbled in 2015 when Denver health authorities raised alarms about pesticides and banned the sale of thousands of plants.
In Alaska, voters legalized pot in 2014, but shops are only just now opening. Washington state spent more than a year mulling rules for the pot business.
The marijuana industry has grown under three presidents, each opposed to legalized weed.
The Obama administration has generally shied away from pursuing commercial operators who comply with state-level rules. When states began pushing the marijuana experiment beyond the medical realm, former Attorney General Eric Holder urged them to keep the drug away from criminals, kids, federal lands and other states where it remains illegal.
Marijuana activists say the pot experiment is too far along for anyone to stop, but the industry is anxious. When Sessions was announced as the attorney general nominee, the pro-legalization group Drug Policy Alliance didn't mince words.
"This," the group announced in an urgent email to supporters, "was our worst nightmare."
Associated Press Writer Sadie Gurman in Denver contributed to this report.
Kristen Wyatt can be reached at http://www.twitter.com/APkristenwyatt.
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