420 in the 207: Previewing The Maine Event

By now, most of the nation is aware that on Tuesday, Maine will join Massachusetts and three other states to vote on binding referendums to legalize marijuana. In Maine, the measure is known as Question #1. Better known by most for lobster, summer vacations on the coast, and blueberries, the easternmost state in the union has long been a marijuana mecca.

Vermont gets the hippie reputation in the northeast, but the flinty folk of the Maine farms and forests share the tradition of practical agriculture on an even larger scale. Crash Barry, the top weed writer in Maine — and one of the de facto ambassadors for cannabis culture — who presently writes for Leafly.com sums up the old school Maine cannabis culture as such:

“For almost five decades, Maine’s rural inland, far from the summer crowds of the shore, has benefited from a thriving underground cannabis economy. Abandoned farms and clandestine forest gardens were gold mines meeting a never-ending demand for “Maine Green Bud” by urbanites from Portland to Boston to New York. In central and western Maine, south-facing mountainsides and hills clear-cut by lumber companies became primo growing locations due to scant police presence and plenty of sun. More valuable than lobster, potatoes, or blueberries, it’s no secret that rural Maine has survived, in part, thanks to the fall cannabis crop.”

That sense of rural pragmatism is also present in Maine’s traditional Yankee libertarian politics as evidenced by their passage — in 1999 — of the east coast’s first medical marijuana law. That law has been adapted multiple times to allow for dispensaries to open, caregivers to operate as de facto small businesses and grow for multiple patients, and generous possession and cultivation limits.

Ironically, it’s the present success of the Maine Medical Marijuana program that is indirectly causing the most harm to the present legalization movement via Question #1. Time and time again, when broader legalization comes up in states with accessible and profitable medical marijuana programs, the operators oppose change to the status quo. It happened in Washington, it’s been happening in California, and it’s the central theme of the legalization battle in Maine.

Despite the vocal protests of a small group of caregivers and other status quo-stakeholders, Question #1 was actually written by an in-state Maine group called Legalize Maine who last year were competing against a different legalization referendum that had been put forward by the Marijuana Policy Project, a national organization who had suggested a more conservative measure.

As Barry writes for Leafly, the two factions realized the risks and struck a deal:

“Finally, last October, after a series of secret meetings, the two groups announced a truce. The agreement was simple. The wording on the ballot initiative would be identical to Legalize Maine’s homegrown language, but MPP would name and run the campaign and pay for the politicking. Everybody emerged happy. The activists were relieved of fundraising responsibilities, and MPP was more than willing to compromise on language and bankroll a possible victory to further its cannabis street cred.”

The mainstream opposition to the bill who dislike legalization for the traditional reasons is less in Maine than in other states, but includes prominent politicians, such as Governor Paul LePage (who’s personally more infamous than prominent these days), the law enforcement community, and even the Roman Catholic Church.

For caregivers and medical marijuana stakeholders in Maine who make their living in cannabis (and claim to support legalization generally), but who stubbornly and vocally oppose Question #1, preserving the status quo is a question of self-preservation. They acknowledge that they’re self-interested, and that the bill does provide some advantages to current operators. However, overall they believe that it’s not worth interfering with the thousands of expert cultivators, consultants, and caregivers in Maine already making a living, many of whom in rural and economically-limited areas of the state.

At the recent New England Cannabis Convention (NECANN) in Portland, I spoke with an unnamed caregiver who opposes Question #1 and thinks interfering with current cannabis system will decrease the quality of the overall industry by incorporating those who are buying, rather than earning, their way into the small state. To his point, he recounted an argument he had with David Boyer, who represents the Marijuana Policy Project (MPP) in Maine via the Regulate Maine coalition about what he says is an intentional effort to redirect economic benefits away from existing caregivers.

It’s not all terrible, BUT — I asked David Boyer  and he told me, ‘you just want a monopoly for the three thousand care-givers to grow all the pot in Maine.’ I said, ‘you’re goddamn right I do, who else would you propose grow it?’ and then he shut up…The MPP is out of Washington and is a special interest group and the people backing the MPP have put in millions of dollars and the people that are backing it are public figures. Those people don’t spend their money if they don’t have a plan … and the plan for them is financially driven and I can 100% guarantee you that the 3500 caregivers in Maine aren’t a part of that plan.”

Listen to full interview with Maine caregiver opposed to Question #1:

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In addition to regulating the adult use market, the bill would also legalize personal cultivation and possession. Details below quoted directly from Ballotpedia:

The initiative would establish a system of state regulation and licensing of the cultivation, manufacture, distribution, testing and retail sale of marijuana and marijuana products, and would authorize municipal regulation as described below. It would impose a 10% sales tax on sales by retail marijuana stores and social clubs, with revenues to be deposited in the General Fund.

Personal use of marijuana: The initiative would allow any person 21 years of age or older to:

• use, possess, or transport up to 2½ ounces of prepared marijuana;
• transfer or furnish to another person who is 21 years of age or older, without payment of any kind, up to 2½ ounces of marijuana and up to 6 immature marijuana plants or seedlings;
• possess, grow, cultivate, process or transport up to 6 flowering marijuana plants, 12 immature plants and an unlimited number of seedlings, and possess all the marijuana produced by these plants at the person’s residence;
• purchase up to 2½ ounces of retail marijuana from a retail marijuana store;
• purchase up to 12 seedlings or immature plants from a retail marijuana cultivation facility;
• cultivate up to 6 flowering plants at the person’s residence, or on property the person owns or has written permission to use for this purpose; and
• consume marijuana in a nonpublic place, including a private residence.

The term “nonpublic place” is not defined in the bill. The initiated bill does not repeal state criminal laws relating to marijuana but provides that personal use and other activities specifically authorized in the bill are nevertheless legal. Cultivation of marijuana for medical use would continue to be regulated under the existing medical marijuana law. Existing laws that restrict where people may smoke tobacco would also apply to smoking marijuana, though not to ingestion of marijuana and marijuana products by other means.

State licensing and regulation: The Department of Agriculture, Conservation and Forestry (the “Department”) would become the state licensing authority and would be required to adopt rules within nine months. A state license would be required for any entity to locate or operate a “retail marijuana establishment” or “retail marijuana social club.” A retail marijuana social club means a facility that sells retail marijuana to consumers for consumption on the premises. A retail marijuana establishment includes the following facilities, all of which are prohibited from allowing consumption of retail marijuana or retail marijuana products on the premises:

• a retail marijuana store, which sells retail marijuana and/or retail marijuana products to consumers;
• a retail marijuana testing facility, which analyzes and certifies the potency of retail marijuana and retail marijuana products;
• a retail marijuana cultivation facility, where retail marijuana is grown, prepared and packaged; and
• a retail marijuana manufacturing facility, where retail marijuana products are manufactured, prepared and packaged.

The Department would be required to regulate the labeling and advertising of retail marijuana and retail marijuana products, including a prohibition on mass market advertising campaigns that would “have a high likelihood of reaching persons under 21 years of age.”

Municipal authority: Local approval by the municipality where the applicant proposes to locate the facility would be required before the issuance of any state license. In addition, this initiative would authorize municipalities, within their jurisdictions, to:

• prohibit the operation of retail marijuana establishments and retail marijuana social clubs;
• restrict the number of retail marijuana stores in the municipality;
• regulate the location and operation of retail marijuana establishments and social clubs; and
• adopt and enforce regulations for retail marijuana establishments and social clubs, which are at least as restrictive as the state law and regulations and may include local licensing requirements.

Employment policies: The proposed law specifies that employers would not be required to allow or to accommodate the consumption, use, possession, sale, trade, display or growing of marijuana in the workplace. Employers also could adopt and enforce policies restricting use of marijuana by employees and could discipline employees who were under the influence of marijuana in the workplace.

If approved, this citizen initiated legislation would take effect 30 days after the Governor proclaims the official results of the election.

There will certainly be new costs for caregivers who want to join the regulated adult use market, specifically via new testing and labelling requirements; however, there are also specific provisions designed to advantage existing caregivers. The state has set a statewide canopy limit of 800,000 square feet, with 40% set aside for grows of 3,000 square feet or less and with existing caregivers and dispensaries getting first priority for licenses. The 10% sales tax from retail sales will be deposited into the state General Fund.

Although municipalities have control over the zoning of retail facilities and social clubs, Question #1 does not put a limit on the overall number statewide. Ultimately, because of those provisions, municipal governments will have more practical power than the State. As Patrick Whittle of the AP recently reported, in anticipation of Question #1, many municipalities are already enacting 180 day moratoriums on new marijuana businesses opening up:

Eric Conrad, a spokesman for the association, said he expects many more municipalities to do so in the wake of legalization if the measure passes. He said a temporary pause on marijuana businesses will allow cities and towns to tailor laws about recreational marijuana sales to their own communities.

However, the action is also largely symbolic, because it will take the state months of state rulemaking for pot shops to open anywhere in the state, Conrad said.

“Moratoriums are fine now if you want to restrict properties from changing hands now in advance of the question,” Conrad said. “Or even send a message that it’s not going to be easy here or welcome here.”

As of publishing, Question #1 is currently leading in the polls: 50% in favor, 41% opposed, and 9% undecided.