Pubdate: Tue, 03 Nov 2015
Source: San Diego Union Tribune (CA)
Copyright: 2015 Union-Tribune Publishing Co.
Note: Seldom prints LTEs from outside it's circulation area.
Author: Steven Greenhut


Regulators, Legislators Paving the Way for Expected Legalization

SACRAMENTO - A colleague and I were standing in a hotel in downtown 
Ho Chi Minh City in 2000 as part of a trip reporting on the 25th 
anniversary of the fall of Saigon. He went to light up a cigarette, 
paused, and then asked the hotel clerk if that was allowed. The 
Vietnamese nationals we were chatting with broke out laughing. Of 
course, that was OK!

This led to a lively discussion about the regulations we have in 
California. The chat covered far more than indoor-tobacco rules, 
although it was short and hardly comprehensive. Our Vietnamese 
friends were in disbelief that, in some instances, people in "free" 
America faced more regulations than in their communist country.

It was an eye-opener - and a reminder that sometimes even when things 
are legal (smoking, for instance), they face many restrictions. It's 
something to think about as Americans move toward legalizing 
marijuana for recreational purposes. The debate often is between 
"legal" or "illegal," but the main question is about how the product 
will be taxed, controlled and regulated - and by which governmental 

Voters in four states and the District of Columbia have legalized 
recreational marijuana, and several more are expected to do so within 
a few years. Several legalization initiatives have been filed with 
the California attorney general for the November 2016, although only 
one of them is likely to have enough financial backing to be serious. 
Yet, as this column reported in August, California taxing authorities 
and legislators are rushing to prepare for the inevitable.

The most significant effort was the passage by the Legislature and 
signing by Gov. Jerry Brown of the Medical Marijuana Regulation and 
Safety Act. The new package of laws deals with medical marijuana, 
which was approved by voters with the passage of Proposition 215 in 
1996, but it really is an attempt by legislators to create a 
framework for recreational legalization.

California's medical-marijuana system has limped along in a legal 
gray area for nearly 20 years, so why the rush to create a consistent 
set of state laws now? The obvious answer: Legislators want to 
control an emerging industry that's on the cusp of legalization. The 
latest news isn't lost on them. Legal marijuana has become such a 
windfall in Colorado that it is triggering a tax-refund rule. 
California's tax authorities don't want to miss out on similar revenues.

The new state medical-marijuana regulation "signals California's 
shift away from a loosely regulated, ambiguous gray marijuana market 
to a robust, state law regulated medical-marijuana regime," wrote 
Alison Malsbury in the Canna Law Blog. Like many interested in the 
cannabis industry, she says the new law will weed out bad actors and 
keep away the federal government, which still views marijuana as an 
illegal narcotic. But she admits that the new legal system will "not 
be as loose and free as it has been under the current system."

That's ironic, no? One need only look at the long list of state 
regulations requiring transportation, manufacturing, taxation, labor 
laws for marijuana clinics, "tracking and tracing" the product and so 
forth to realize that the legal system might not exactly expand 
marijuana users' freedom to use and distribute the product.

Many marijuana advocates have embraced the new state approach, but 
others haven't. David Armstrong, a San Jose-area man who operates a 
medical-marijuana collective, last month filed a lawsuit in Santa 
Clara County Superior Court seeking to overturn the new 
medical-marijuana laws. He argues that the new marijuana regulations 
are in violation of the state Constitution, because they amend 
Proposition 215 without a vote of the people.

The new legal framework that supposedly upholds the right of 
medical-marijuana patients actually restricts their rights under the 
initiative, the complaint argues. In particular, it says the act 
contradicts the 1996 initiative by restricting how much marijuana a 
person can grow, the amount of marijuana a caregiver can grow, and 
the number of patients whom a physician can recommend marijuana. It 
also imposes licensing and fee requirements, and gives localities the 
right to ban clinics.

It's not surprising. This new package was backed by local governments 
and police agencies  groups that have tended to favor crackdowns on 
marijuana use. Most controversially, the plaintiff argues that 
federal law pre-empts any state marijuana law - a dangerous position 
to argue for anyone favoring marijuana legalization, given the 
federal take on the matter.

It's not every day that Americans get to watch a long-time banned 
product become a legal one. Whatever one's views about marijuana - 
for medicinal or recreational purposes - the effort to legalize it is 
one of the more interesting public-policy conundrums in decades. The 
issue is a long way from being resolved, as a combination of state 
laws, voter initiatives, federal actions and lawsuits might soon 
bring the matter to a head.

But the most interesting question is the one reminiscent of that 
debate in the Saigon hotel: At what point do regulations become 
anathema to freedom?
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MAP posted-by: Jay Bergstrom