In January, Vermont became the ninth state to legalize marijuana—and the first to end cannabis prohibition through an act of lawmakers, rather than a ballot initiative. But with the law set to take effect on July 1, questions remain about how the recreational system will actually function.
What you need to know
Vermont Governor Phil Scott (R) signed the adult-use legalization bill, H. 511, into law on January 22. The governor said that he had “mixed feelings” about the legislation, but added that he believed “what adults do behind closed doors and on private property is their choice, so long as it does not negatively impact the health and safety of others, especially children.”
The law permits adults 21 and older to:
- Possess up to an ounce of cannabis, or five grams of hashish.
- Grow “two mature and four immature marijuana plants” on private property in a secured enclosure that’s kept out of public sight.
- Those plants wouldn’t count toward the one ounce possession limitation.
- If you don’t own the property, you’d have to get the property owner’s permission before cultivating cannabis.
“Consumption of marijuana in a public place or in a vehicle is prohibited as is possession of an open container of marijuana in a vehicle, and violations are subject to civil penalties,” a summary of the bill text explains. There are also penalties for providing or “enabling consumption” of marijuana to individuals under 21.
The legislation doesn’t explicitly address marijuana “gifting,” which has served as a way to circumvent market restrictions in certain legal jurisdictions like the District of Columbia.
Employers are still allowed to enforce policies against consuming, cultivating or displaying marijuana in the workplace.
Are you an employer with questions about VT's recreational marijuana law that goes into effect 7/1? Today, we released a guidance for employers on how to navigate the law. Comments? email our Civil Rights Unit at [email protected] #vtbusinesseshttps://t.co/Xl955mOZNq
— Vermont AG Donovan (@VTAttorneyGen) June 14, 2018
If an employer has a no-tolerance drug policy, employees can be fired for violating that policy even if they use cannabis outside the workplace. However, the Vermont Attorney General’s office cautioned employers when it comes to penalizing medical cannabis patients suffering from debilitating conditions in a recent guidance report:
“Under [Vermont’s Fair Employment Practices Act], it is unlawful for any employer, employment agency, or labor organization to discriminate against a “qualified individual with a disability.” Discrimination means not only intentional mistreatment of a disabled employee or applicant, but also failure to provide a reasonable accommodation to that individual… employees carrying a medical marijuana card and those dealing with substance abuse issues may be protected under VFEPA’s disability provisions.”
The new system does not provide access to cannabis seeds or products at dispensaries, as is the case in other states where recreational marijuana is legal. And that’s where things start to get tricky.
Where are adult users supposed to obtain cannabis or seeds to grow their own plants if there’s no legal retail system in place? If you’re a registered medical marijuana patient, who does have access to dispensaries that sell cannabis and seeds, then you could hypoathetically circumvent that issue; but for adults outside the medical system, the conflicting regulations could create headaches.
“Legalization advocates argue that people who are interested in growing marijuana probably have access already,” The Burlington Free Press reported. “The main difference after legalization, they say, will be the lifting of penalties and stigma.”
The winding road to non-commercial legalization in Vermont
While Vermont made history in January by becoming the first state to pass a legalization measure through the legislature, it wasn’t necessarily a smooth path to reform. It’s taken about two years, since the state Senate first voted in favor of a tax and regulate legalization bill—which the House ultimately rejected.
Even as recently as April, Vermont lawmakers attempted to rally support for a commercial legalization bill but were defeated in a floor vote. But House Speaker Mitzi Johnson (D) and others cautioned that the timing wasn’t right, considering the fact that the governor had just signed the non-commercial legalization bill into law just three months prior.
Lt. Gov. David Zuckerman (D) told Vermont Public Radio in April that regardless of the fate of the eleventh-hour effort to move a tax and regulate legalization bill forward, it would only be a matter of time.
“This vote does not reflect the sentiment of the people, and when the sentiment of the people is reflected in this body, it will move forward,” Zuckerman said.
Are medical marijuana patients being left behind as the state prepares to implement its recreational system?
Though adult users won’t have a legal way to obtain cannabis or seeds under the law, there are a number of other differences in how laws apply to medical patients and recreational consumers. For example, adults over 21 are allowed to grow up to six plants outdoors, whereas medical patients can grow up to nine plants—but they’re required to keep their grows indoors.
Also, while harvested cannabis doesn’t count toward a recreational user’s one ounce possession restriction, harvested plants do count toward medical patients two ounce possession restriction.
“I’ve heard concerns from several medical cannabis patients and their loved ones that they cannot get clear guidance from anyone in state government regarding how many plants they are allowed to grow for their own use, and how they may grow them,” Dave Silberman, a Middlebury, Vermont attorney and pro bono drug policy reform advocate, told Marijuana Moment.
“Many patients are wondering whether these rights can be ‘stacked,’ such that, for example, a married couple consisting of one registered medical patient and one non-patient could legally grow four mature plants (two for “adult use” and two for “symptom relief”),” he said.
There is currently a bill being considered in special session that aims to reconcile some of these regulatory differences, according to The Burlington Free Press. Among other things, the bills seeks to impose “locked container transport” requirements that are currently in effect for medical patients but do not apply to adult users. It would also clarify the state’s prohibition on providing cannabis to individuals under 21 under the recreational system, as medical patients may be under 21 and the law doesn’t offer assurances to medical caregivers that they wouldn’t be penalized under the new law.
“Vermont’s homegrow law is a great first step, but is incomplete,” Silberman said. “Despite the failure to move [a more wide-ranging legalization bill, H. 490] forward this past session, I’m optimistic that we’ll be able to move forward quickly in 2019 with a comprehensive bill to establish a regulated market and clear up the inconsistencies between the current ‘adult use’ and ‘medical’ regimes, as more and more legislators are coming to understand the reality that it’s the same damned cannabis either way.”
In the meantime, beginning on July 1, adults over 21 in Vermont will finally be able to legally use, possess and grow marijuana without a doctor’s recommendation.
Three Federal Agencies Take Public Comments On Cannabis Topics
Three federal agencies—the Food and Drug Administration (FDA), the Environmental Protection Agency (EPA) and the Drug Enforcement Administration (DEA)—are now accepting comments from the public on cannabis-related topics such as hemp pesticides and the legal classification of marijuana globally.
In a notice published in the Federal Register last month, FDA said that it is seeking input on potential changes to the status of marijuana under international treaties.
EPA invited comments on applications for pesticides to be used on hemp, which comes months after the crop was federally legalized.
Meanwhile, people have the chance to share their perspective on a proposal DEA released last week that calls for the cultivation of more than three million grams of cannabis for research purposes next year. That 3.2 million gram quota would be 30 percent higher than this year’s. At the same time, DEA said its quota for prescription painkillers such as fentanyl and oxycodone would be decreased next year by more than 50 percent.
The comment period opened last week, and 25 people have weighed in at this point. Submissions received so far are primarily focused on DEA’s proposed reduction opioid production, with several chronic pain patients arguing that they will be negatively impacted. People can send comments on the cannabis and other drug quotas through October 15.
FDA initially made its request for input on cannabis’s global treaty status in March, but it was closed because an expected United Nations (UN) vote on a proposal to remove marijuana from the most strictly regulated category was postponed.
Last month, FDA said it was reopening the comment period until September 30, in anticipation that the UN will make a decision on the possible changes in the coming months. So far, a total of about 3,000 comments have been received, including those posted since August 29. The vast majority voice support for legalization, with many sharing personal anecdotes about the plant’s therapeutic benefits.
“Please lift the ban and prohibition of marijuana. Marijuana isn’t ruining the lives of countless Americans… America’s drug laws are doing that all by themselves via mass incarceration,” Zach Fowler wrote.
“I am 30 years old and suffer from a progressive neurologically condition that leaves me in constant debilitating pain along with a host of other symptoms. Without cannabis, I could not function enough to work for even care for my children,” Amanda Wood-Devore said. “Cannabis calms my pain, eases corresponding anxiety, and helps my constant nausea and vomiting.”
Alex Rol said that the “current marijuana laws are more destructive than protective.”
“We have seen extensive reports that cannabis can be used for medical purposes and many find its effects increase the ease of life,” he said. “While I understand the concern of those less familiar with cannabis on its legalization it simply isn’t right to incarcerate people for possession of a generally harmless substance.”
“I agree with the [World Health Organization] that cannabis should be removed from the Schedule 1 classification,” Michael Ochipa wrote, referring to a recommendation WHO released in February urging the rescheduling of marijuana and descheduling of CBD.
“Most of the research to date indicates that cannabis has a very positive risk/reward profile,” he wrote. “Side effects are lower, and medicinal benefits are greater than many over the counter drugs. It can also be grown easily at home making it more economical.”
Though it’s not clear how much stock FDA will put into personal stories of individuals who’ve benefited from marijuana in shaping the Trump administration’s position on scheduling changes, the volume of comments and consistency of support for legalization is significant. While there has been a focus on the medical potential of cannabis, several others emphasized the consequences of prohibition, particularly for communities of color.
If the United Nations does decide to adopt WHO’s recommendations, it wouldn’t mean that member nations would be free to legalize marijuana without technically violating the treaties. However, even under its current strict status, Canada and Uruguay have moved forward with legalization models, with Mexico expected to follow suit as early as next month.
Over at EPA, there hasn’t been quite as much interest from the public in submitting comments on pesticides applications for hemp. The agency announced last month that it was accepting input on 10 existing applications and said it hoped “this transparent and public process will bring hemp farmers and researchers increased regulatory clarity in time for next growing season.”
EPA said it’s not required to take public comment on the applications but is doing so “because of the potential significant interest from the public in these initial applications and in furtherance of being completely transparent about these applications.”
There may be significant interest from the public on hemp legalization generally, particularly among stakeholders who are eagerly awaiting federal regulations to unlock the crop’s potential, but that isn’t being reflected on the Federal Register notice page yet when it comes to pesticides. Only five people have commented on the proposal.
One person noted that the 10 pesticides under review contain almost the same ingredients and said “it really limits the ability of producers to manage pests and diseases.”
“I highly recommend expanding the list of compounds available to producers to increase the ability to suppress pests and diseases,” the anonymous commenter wrote. “There are many more bio-pesticides on the market that are safe for humans that specifically target agricultural pests.”
Another individual who said he and his partner are making a transition from growing cannabis in California to hemp in North Carolina wrote in support of the proposed pesticides.
“We have used the products under discussion with great effectiveness, especially the biological controls,” the person said. “Because hemp can be so susceptible to mold, fungus, and pests, it is imperative to have these tools to ensure a healthy and plentiful product.”
Finally, there was one comment in opposition to allowing any pesticides on hemp because, they wrote, “IT WILL JUST TURN IT IN TO POISON.”
EPA’s public comment closes on September 23. The agency did not say when decisions would be made about the applications, but it did state that it planned to give hemp farmers approval to use the tools before the 2020 planting season.
The fact that three separate federal agencies are now accepting comments on separate cannabis issues is another sign that the public has more opportunity than ever before to influence the government’s position on marijuana policy.
Photo courtesy of Nicholas C. Morton.
Bipartisan Lawmakers Circulate Letter Urging FDA To Back Off CBD Companies
A bipartisan pair of lawmakers are circulating a sign-on letter asking colleagues to join them in urging the Food and Drug Administration (FDA) to back off companies that are selling CBD products in a responsible manner.
The “Dear Colleague” letter, which is being led by Reps. Chellie Pingree (D-ME) and James Comer (R-KY), emphasizes that hemp and CBD were federally legalized under the 2018 Farm Bill and argues that the lack of regulations for such products is creating industry uncertainty that’s inhibiting economic opportunities.
The letter was first reported by the U.S. Hemp Roundtable, which is asking its supporters to encourage their representatives to sign on.
FDA has said it is in the process of developing rules for the non-intoxicating compound, including a potential alternative regulatory pathway allowing for CBD to be added to the food supply and as dietary supplements. That could take years, however, as former FDA Commissioner Scott Gottlieb has noted.
In the meantime, the agency is being selective about enforcement action against companies that make unsanctioned claims about their products while also maintaining that all businesses selling CBD food items are violating the law.
The lawmakers aren’t satisfied. They described FDA’s regulatory timeframe as “untenable,” particularly because the U.S. Department of Agriculture is expected to release its rules for hemp “any day now,” and an official revealed this month that its draft regulations are currently undergoing final White House and Department of Justice review.
The members of Congress added that FDA’s current approach to CBD has “created significant regulatory and legal uncertainty for participants in this quickly evolving industry.”
“Given the widespread availability of CBD products, growing consumer demand, and the expected surge in the hemp farming in the near future, it’s critical that FDA act quickly to provide legal and regulatory clarity to support this new economic opportunity,” they wrote.
“Please join us in signing this bipartisan letter to Acting FDA Commissioner Ned Sharpless urging the agency to adopt a risk-based policy of enforcement discretion that targets bad actors while eliminating uncertainty for responsible industry stakeholders and consumers. Additionally, we are requesting that FDA to issue an interim final rule to regulate CBD as a dietary supplement and food additive.”
In the letter to Sharpless that Pingree and Comer are asking fellow lawmakers to sign, they laid out two requests for FDA.
First, the agency should “promptly issue guidance announcing a policy of enforcement discretion that maintains FDA’s current risk-based enforcement approach towards hemp-derived CBD products.” And second, it should “consider issuing an interim final rule, pending issuance of a permanent final rule, to establish a clear regulatory framework for CBD as a dietary supplement and food additive.”
The lawmakers added that they appreciate that FDA has pursued “enforcement actions against the worst offenders,” but that “it can do so while eliminating regulatory uncertainty for farmers, retailers, and consumers.”
“Without a formal enforcement discretion policy, anyone participating in the growing marketplace for legal hemp-derived products will continue to face significant legal and regulatory uncertainty,” they wrote.
Though issuing guidance on a “policy of enforcement discretion” wouldn’t be a codified law allowing companies to market CBD in the food supply, it would demonstrate to the industry that some protections are in place while FDA continues to navigate the rulemaking process.
Lawmakers have until Tuesday to sign the letter to FDA.
Read the Dear Colleague invitation and CBD letter to FDA below:
Photo by Kimzy Nanney.
Marijuana Banking Bill Will Get A Full House Floor Vote This Month
A bipartisan bill to protect banks that service marijuana businesses will get a House floor vote by the end of the month, the office of Majority Leader Steny Hoyer (D-MD) confirmed to Marijuana Moment on Friday.
House leadership announced the decision to Democratic lawmakers at a closed-door meeting on Thursday.
“Mr. Hoyer said at the Whip meeting yesterday that he intends to move it this month,” a Hoyer staffer said in an email. “We’re discussing it with Members, but it hasn’t been scheduled just yet.”
Prior to confirmation from Hoyer’s office, four sources initially described the development to Marijuana Moment, with some saying the vote would be made under suspension of the rules—a procedure that is generally reserved for non-controversial legislation.
Voting on suspension would require two-thirds of the chamber (290 members) to vote in favor of the Secure and Fair Enforcement (SAFE) Banking Act in order for it to pass. The bill, which cleared the House Financial Services Committee in March, currently has 206 cosponsors, including 26 Republicans.
No amendments would be allowed to be added on the floor under the suspension process.
Problems could arise if lawmakers aren’t able to rally additional votes from conservative members or if there’s pushback over the strategy from progressive lawmakers, though it is unlikely Democratic leadership would advance the bill if they didn’t believe they have the votes for passage.
While interest in resolving the banking issue is generally bipartisan, it’s within reason to assume that lawmakers on both sides of the aisle might have wanted the opportunity to offer provisions such as extending protections to hemp businesses or adding language promoting social equity policies. That said, it is possible that leadership could file an entirely new piece of legislation that is similar to the SAFE Banking Act but contains modified provisions negotiated with key members and use that as the vehicle for floor action.
Many expected cannabis banking legislation to receive a floor vote before the August recess, but that did not come to fruition.
In any case, the development comes as the Senate Banking Committee is also preparing to hold a vote on marijuana banking legislation, with Chairman Mike Crapo (R-ID) announcing on Thursday that his panel is “working to try to get a bill ready.” He didn’t offer a timeline, however, other than saying he hoped to advance the legislation by the end of the year.
While sources told Marijuana Moment that Hoyer made his decision to allow cannabis banking vote following an earlier Wednesday meeting on the issue, it is likely that building momentum in the GOP-controlled Senate added to pressure on the House to act so that Democrats wouldn’t be seen as lagging behind Republicans on cannabis reform, an issue the party has sought to take political ownership of.
Following Crapo’s statement on advancing the banking legislation, Rep. Ed Perlmutter (D-CO), chief sponsor of the SAFE Banking Act, told Marijuana Moment that he welcomes the senator’s “commitment to resolve the banking conflicts that have been created by the misalignment in state and federal law on the issue of cannabis.”
“I remain focused on passing the SAFE Banking Act out of the House and look forward to working with my colleagues in the Senate as they take up the SAFE Banking Act or work to develop and pass similar legislation,” he said.
Banking access is largely seen as one of the most achievable pieces of cannabis legislation that stands to pass this Congress. Advocates and reform-minded lawmakers view it as one of the first steps on the path toward ending federal marijuana prohibition.
“We are seeing the blueprint in action and moving forward on critical legislation to protect state legal cannabis banking,” Rep. Earl Blumenauer (D-OR) told Marijuana Moment, referring to a memo he sent to House leadership last year outlining a committee-by-committee process for passing incremental cannabis bills leading up to major legislation to end federal prohibition. “Earlier this summer, the House passed protections for state and tribal cannabis laws. In the most cannabis friendly Congress in history, we need to keep up this momentum. There is still much to be done.”
There has been some disagreement within advocacy circles about whether it’s prudent to pass legislation viewed as primarily favorable to the industry before advancing comprehensive legislation that deschedules cannabis and takes steps to repair the harms of prohibition enforcement.
“It is our hope that after the successful passage of the SAFE Banking Act in the House, we will be able to advance legislation that ends the federal criminalization of cannabis once and for all,” Justin Strekal, political director of NORML, told Marijuana Moment. “Now is our time to demonstrate that marijuana law reform is both good policy and good politics.”
“We will not stop until otherwise law-abiding Americans are no longer discriminated against or criminalized due to the past or future choice to consume cannabis,” he said.
Neal Levine, CEO of the Cannabis Trade Federation, told Marijuana Moment that the group is “delighted that the U.S. House of Representatives is on the brink of passing a landmark piece of cannabis policy legislation that modernizes our antiquated banking laws to reflect the will of the people.”
“This is welcomed and long overdue news for the over 200,000 employees that work in the industry, cannabis businesses, and for public safety in the communities in which we operate,” he said. “Once the SAFE Banking Act passes the U.S. House, we call on the U.S. Senate to move quickly to protect our businesses and our workers.”
Pressure has been building all year from stakeholders and policymakers alike to get the legislation passed. Endorsements aren’t just coming from reform groups, either; 50 state banking associations, the National Association of State Treasurers, the top financial regulators of 25 states, a majority of state attorneys general and bipartisan governors of 20 states have also voiced support for the SAFE Banking Act.
Earlier this month, the head of the American Bankers Association predicted that the bill would be passed in the House “as early as September.”
This story was updated to add comment from Perlmutter and Hoyer’s office.