Ask the governors of established producer states California, Colorado, Oregon, and Washington to seek guidance from the US Department of Justice on the agency’s stance should two or more medical or adult-use states decide to regulate commerce between them. WWDoJD?
Engage stakeholders and policymakers in legal and legalizing medical and adult use states that would benefit from access to an established, competitive, world class supply chain.
Advocate for and help to shape a bi-lateral or multi-lateral agreement on a regulatory framework for commerce now, without waiting years for federal legalization.
Why interstate commerce? And why now?
The future of legal cannabis in the US is interstate. When federal legalization happens, the Commerce Clause of the US Constitution will forbid states with legal markets from discriminating against cannabis grown or products produced in other states. Currently, however, legal industries are state-siloed. But cannabis doesn’t grow equally well, or efficiently, or sustainably in all parts of the country. This means that many legal and legalizing states are stuck building entire production industries that will largely become non-competitive and fail when the walls do finally come down. They are creating an entirely avoidable production bubble that will help no one except perhaps the few large companies that can afford spend millions to get factory production up and running first and make their ROI before the walls come down. In addition, that production capacity takes years to come fully online, leaving millions of patients and cannabis lovers stuck in illicit markets, while thousands of emerging and potential small businesses in retail, delivery, distribution, product development, manufacturing, wellness, hospitality, and allied fields wait years for a dependable supply chain that, when it does come, will be limited and less than competitive with illicit markets.
In the meantime, thousands of small farms and businesses in the best producing regions of the country; many in legacy communities that have depended upon the economics of cannabis for generations, businesses that have done everything right in going legal, face economic hardship and even catastrophe for lack of access to the markets that those regions have traditionally supplied.
None of this is reflects the actual future of the legal market. It is unsustainable, and we would never
What Would DOJ Do?
All legal cannabis in the US, both medical and adult-use, exists because of assurances that the US Department of Justice will not intervene.
State regulated medical and adult use industries both remain illegal under federal law, and subject to federal jurisdiction. Adult use is able to exist because the DOJ has taken a “hands off” approach, first outlined in the Cole Memorandum, assuring that the they will not prosecute those operating in good faith under state regulation.
Would DOJ commit to a hands off approach in the event that two or more states decided to regulate commerce between them? We won’t know unless we ask.
On April 20th, 2021, and again on May 4th, White House Spokesperson Jen Psaki reiterated President Biden’s position on cannabis, saying:
“The President supports leaving decisions regarding legalization for recreational use up to the states.”
US Attorney General Merrick Garland has also been very clear that the Department of Justice will not interfere in state-regulated legal cannabis. In testimony before the House Appropriations Subcommittee, he said:
“I do not think it is the best use of the Department’s limited resources to pursue prosecutions of those who are complying with the laws in states that have legalized and are effectively regulating marijuana,” And: “It’s probably not a good use of our resources where it is regulated by the state.”
Unlike adult use, Medical industries are already protected from federal interference by the Roharbacher-Blumenauer Amendment, passed as part of every federal budget since 2013. The Amendment expressly forbids DOJ from interfering in state medical programs. There is a strong argument that the Amendment already protects state-regulated commerce, meaning that medical states could decide now to open their medical programs to cannabis from other states, allowing patients in their states to access a broader range of better, less expensive medicines. It is very unlikely, however, that any state will decide to do this without a clear, clarifying statement from DOJ. And we won’t get that clarification until we ask!
What if DOJ says no?: Then nothing changes and we are exactly where we are now, with thousands of small farms and businesses across producer states suffering from lack of market access, while multiple consumer and medical states continue to build and artificially protect slow to emerge, economically and environmentally unsustainable supply chains as we all wait (perhaps years) for federal legalization.
What if DOJ says yes? A tolerant response from the Department of Justice on either medical or adult use would put interstate commerce at the same level of federal protection that now supports legal and medical interstate markets. That in itself would not immediately open borders, nor would it force any state to do so, but it would open a path to regulated commerce for any state that wanted to participate.
Why would consumer states want commerce? Some consumer states would surely choose to remain siloed to protect nascent production industries, (until they are forced to open by federal legalization). But there are numerous adult use and medical states where it will simply never be competitive or sustainable to grow cannabis at scale, and whose economies, small businesses, revenues, patients and consumers would benefit tremendously from immediate access to an established, competitive, world class supply chain. This would help them get industries off the ground years faster, and move millions of their citizens out of illicit markets and into legal, regulated markets years sooner.
With a tolerant stance from DOJ, we will only need one governor in one consumer or medical state to embrace commerce to change the political landscape.