S.54: The Good, The Bad, And The Hopeful – Part 1

For all that both Heady Vermont – and the cannabis community in general – has been talking about S.54, the proposed legislation to develop a taxed and regulated cannabis economy in Vermont, we’ve come to realize that most of the conversation has been sailing around at a fairly high level of policy. 

From a public-facing perspective, we’ve not had much opportunity to do a granular (yet accessible) dive into the details of the legislation to talk about what we think works and could be improved.

So, in preparation for the upcoming legislative session, our Cannabis In The Capitol event on January 9, 2020, and our #LegalizeVT campaign to help educate and support Vermonters as they advocate for effective and fair legislation, we’re publishing a two-part exploration of the details of S.54

We are interested in the development of a just, equitable, environmentally sound commercial market that facilitates small, local business, organic grows, and helps invigorate the rural economy.

We do want to note that in no way is Heady Vermont an apologist for S.54. We are interested in the development of a just, equitable, environmentally sound commercial market that facilitates small, local business, organic grows, and helps invigorate the rural economy. We are happy to support legislation which aligns with those goals, and committed to calling out elements of the legislation which do not.

We also want to note that S.54 is only about creating a commercial market for adult use cannabis and does not apply to hemp or medical cannabis. Nor does S.54 strip away any of the hard-fought rights we have to grow our own plants and share our harvest with our friends and neighbors.

The Looks Like Bad – But Is Actually Pretty Clever

Let’s start with what most folks find problematic about the bill: Saliva Testing.

Governor Scott has made quite clear that he won’t allow a legal tax and regulate market in Vermont without roadside saliva testing. And if you look at the language on P.73, it looks like the legislature is accommodating him:

P.73: Saliva Test. If the law enforcement officer has reasonable grounds to believe that the person is under the influence of a drug other than alcohol, or under the combined influence of alcohol and a drug, the person is deemed to have given consent to providing of an evidentiary sample of saliva.

“Ok, you can have saliva testing IF it’s done pursuant to a warrant (reasonable suspicion) and you have to take them back to barracks.”

However, if you read a little farther, what the bill actually does is apply the same standards for saliva testing as exist for blood testing. Two years ago, the U.S. Supreme Court said blood tests violate the Fourth Amendment. This means police have to have a warrant to procure a blood sample, and someone can’t be penalized for refusing a blood test. 

So, S.54 contains a clever bit, which basically says to the Governor, “Ok, you can have saliva testing IF it’s done pursuant to a warrant (reasonable suspicion) and you have to take them back to barracks.”

Under this set of circumstances, if police are already taking someone back to barracks and getting a warrant, then they don’t have to bother with an unreliable saliva test when they can get a fare more accurate blood test.

By requiring a warrant, you prevent police from coming up with a new version of, “I smell weed, I’m searching your car.” 

Another section later on in the bill says that if, one day, there is a reliable roadside test certified by the National Highway Safety Administration, then Vermont’s Department of Public Safety has to report that information to the legislature, and legislature gets to decide whether to allow roadside testing units.

These provisions are why even the ACLU is not opposed to the compromise. By requiring a warrant, you prevent police from coming up with a new version of, “I smell weed, I’m searching your car.” 

This also allows the Governor to declare victory on roadside testing without jeopardizing civil liberties.

The Good

Here’s something we like a lot: Employment Provisions:

P.39: The Board shall adopt rules that set forth standards for determining whether a person should be denied a cannabis establishment identification card because of his or her criminal history record based on factors that demonstrate whether the applicant presently poses a threat to public safety or the proper functioning of the regulated market. Nonviolent drug offenses shall not automatically disqualify an applicant.

This is a huge social justice provision and a direct attempt to address some of the harms perpetrated by the war on drugs. Basically, it says that everyone working in the cannabis industry – whether as an employee or a business owner – needs an ID card, and that people with a criminal history can’t be denied a card unless they’re a current threat to public safety and the regulated market.

This not only lets people with criminal histories own the businesses they work in, but the present threat piece also addresses the issue of violent felonies by saying, “If you assaulted someone at 19 and now you’re 45, you should not be denied a license.” 

This is a huge social justice provision and a direct attempt to address some of the harms perpetrated by the war on drugs.

When Senate adopted that language, it was considered a huge win for everyone who wants to participate in the cannabis industry.

Now, the one tricky bit is that the Cannabis Control Board is responsible for the rules which determine the standards by which people will be judged. One might imagine a CCB stacked with anti-cannabis political appointees who create extremely stringent Rules Of Judgement. 

But, given the widespread recognition among the legislature’s members that the pervasive war on drugs was a racist, unethical failure, we’re going to proceed on the faith that these rules will roll out in a reasonable manner.

Since we’ve mentioned the Cannabis Control Board, let’s look at the language around that august body as well. It starts on page 5, but it’s long, so rather than quoting, we’ll summarize.

Cannabis Control Board

When the rubber meets the road, we’ll want to know why individual CCB members are being appointed, and whose interests they have in mind.

The CCB will have 5 members, sitting for 3-year terms, who shall be appointed by:

• The Governor
• The Senate Committee on Committees
• The Speaker of the House
• The Treasurer
• The Attorney General

CCB members can’t be involved in any organization subject to regulation by the board. The CCB will also have an advisory committee whose members have expertise in:

• Public health
• Agriculture/horticulture/plant science
• Lab science/toxicology
• Systemic social justice and equity
• Women and minority owned biz ownership
• Substance misuse prevention
• Cannabis industry
• Biz management/regulatory compliance
• Municipal issues
• Public safety
• Criminal justice reform

It strikes us that the challenge here is for the administration and legislature to appoint people who represent a diverse range of demographics, and not just put together a panel of old, white men. When the rubber meets the road, we’ll want to know why individual CCB members are being appointed, and whose interests they have in mind.

We also have questions about the advisory board, and how much power it has.

We also have questions about the advisory board, and how much power it has. Will their wisdom be heeded by the CCB, or is this part of the legislation merely lip service designed to appease the cannabis community? If the advisory board has no power, that strikes us as a problem.

Fortunately, the legislation does provide the CCB with some guidance on the matter of issuing licenses.

Licensing Priorities

P.43-44: The system of priorities shall require consideration of criteria, including:

1. Whether applicants have a medical cannabis dispensary in good standing.
2. Whether applicants would “foster social justice and equity” by being a woman or minority- owned business.
3. Whether applicants have specific plans to “recruit, hire, and implement a development ladder for minorities, women, or individuals who have historically been disportionately impacted by cannabis prohibition.”
4. Whether applicants have specific plans to pay employees a lIving wage and offer benefits.
5. Whether the project incorporates principles of environmental resiliency or sustainability, including energy efficiency
6. The geographic distribution of cannabis establishments based on population and market needs.

We’re particularly happy about priorities 2-5, and the fact that they apply to all licenses for all types of canna-businesses. And speaking of Priority 5, on P.15 the legislation talks about Setting Environmental Standards.

Setting Environmental Standards

The language is actually pretty vague here, and basically says that the ED of the CCB needs to consult with the Secretary of Natural Resource, the Chair of the Natural Resources Board, and the Secretary of Agriculture, Food, and Markets so that they can “set land use or environmental regulatory requirements or standards applicable to cannabis establishments.”

We know that environmental standards are going to be important to a large number of legislators in the upcoming session, and rightly so.

While the bill doesn’t set those standards specifically, it does say that they should cover:

• Water quality
• Solid/hazardous waste handling
• Building energy standards, energy audits, and energy efficiency and conservation measures

We know that environmental standards are going to be important to a large number of legislators in the upcoming session, and rightly so. We are, after all, in a climate crisis, Lake Champlain is a mess, we’re running out of landfill space, and the oceans are drowning in plastic. One might hope that the standards and requirements ultimately set by the state are reflective of and responsive to the scope of the problems we face. Another important piece in preserving the Vermont landscape is supporting its small businesses and farmers – which is why we’re also happy about the Small Cultivators Clause.

Small Cultivators Clause

All this points to a number of great priorities, including not letting giant, well-funded, out-of-state businesses come in and stomp all over the local cannabis economy.

P.46-47: Again, to summarize…

• It’s the intent of the General Assembly to move as much cannabis as possible into the legal market.
• It’s their intent to encourage participation by small, local farmers.
• To that end, the CCB “shall consider policies to promote small cultivators.”
• Also, in the initial application period, the CCB is directed to “prioritize licenses for small cultivators.”
• And the CCB must “consider different needs/risks of small cultivators when adopting rules” and “make an exception or accommodation” for small cultivators “where appropriate.”
• After getting their license, any small cultivator can sell their stuff to a dispensary “at any time,” including the period before retail sales gets going. 

All this points to a number of great priorities, including not letting giant, well-funded, out-of-state businesses come in and stomp all over the local cannabis economy. It also shifts the burden of meeting regulations away from the small grower to the bigger wholesalers, manufacturers, and dispensaries. And, this provision takes care of supply and demand in the early phase of rolling out the commercial market by helping small cultivators get a leg up on sales.

We are pleased.

This has been Part 1 of a two-part overview of S.54. Stay tuned for Part 2!

Note: Deepest gratitude to attorney Dave Silberman for his advocacy, his wisdom, and his nuanced explanations of much of this legislation. Vermont would be a much poorer place without him.