Politics
Hawaii AG’s Office Explains How It Drafted A Marijuana Legalization Bill That Lawmakers Are Advancing This Session
As Hawaii’s legislative session kicked off in January, lawmakers in both chambers introduced a sprawling, 300-plus-page proposal to legalize marijuana. Since then, committees have held hearings on the legislation, made amendments and listened to hours of public testimony. And though the Senate passed a version of the bill earlier this month, the reform now hangs in the balance following a neck-and-neck vote last week on the House floor.
The massive bill was based on draft legislation by the office of Attorney General Anne Lopez (D), who was appointed in late 2022 by Gov. Josh Green (D), a supporter of legalization. During her confirmation hearing, Lopez committed to leading an administrative task force “between now and next legislative legislative session to develop a complete regulatory and law enforcement legislative package that you can attach to any bill if you’re planning to legalize marijuana.”
“I’ve changed our position from opposition to ‘that train has left the station,’” Lopez said at the time. “So let’s find a way to help you. Let’s give you those guardrails so that you can implement the law and the policy that you want.”
After previewing the legislation in November, Lopez’s office sent it to lawmakers in January. But in a press release at the time, Lopez said explicitly that the department “does not support the legalization of adult-use cannabis.”
“We acknowledge that with changing public perception in recent years, the odds that the Legislature may pass legislation legalizing adult-use cannabis have increased substantially,” she said. “Given that the Legislature could theoretically pass a bill as early as this year, it is my department’s duty to warn the Legislature of the risks, while simultaneously providing a framework that includes robust public-safety and public-health safeguards.”
“We try to kind of imagine a worst-case scenario and then try to figure out how it is that we’re going to mitigate those concerns.”
Against that backdrop, lawmakers have proceeded to debate the risks and benefits of the legalization bill, SB 3335. Some opponents of the change have pointed to Lopez’s comments as they work to scuttle the proposal. Just last week, for example, Rep. Gene Ward (R) cited the AG’s office’s stance ahead of a close 25–23 vote to advance the proposal from the House floor to its final committee stop.
“For some reason, some people think that the black market is going to go away because of what we’ve got here,” Ward said of the bill. “We have to remember that the AG said that this is not something that she supports.”
Lopez’s office contacted Marijuana Moment earlier this month and offered an interview with staffers who worked on the cannabis legalization proposal. Those members were Dave Day, special assistant to the attorney general, as well as Andrew Goff and Kotoba Kanazawa, both deputy attorneys general. Goff is the office’s medical marijuana and hemp specialist, while Kanazawa specializes in drafting bill language.
Prior to the interview, the office said it would not answer questions it deemed political.
Below is a transcript of the conversation that has been lightly edited for clarity and length.
Marijuana Moment: Let’s start early on. You’re working in the attorney general’s office when Anne Lopez is appointed. At some point, you get the assignment to craft a bill to legalize cannabis. What was the direction to your team in terms of how to approach writing a piece of legislation like that?
Dave Day: Attorney General Lopez, during the first legislative session—and so this was in 2023—you know, we were looking at SB 669. And that piece of legislation was I don’t know how many pages long. Sixty-some pages long, I think. It was it was a pretty short piece of legislation, and I don’t believe that had an appropriation in it. And one of the things that was clear, for Attorney General Lopez and for everybody in our department, was that if the legislature does indeed go down this path, it needs to do so much more carefully and deliberately in terms of, you know, what the concerns that law enforcement officials have and public health officials have.
One of the things that makes the Attorney General’s Office unique, compared to, say, other law enforcement officials in the state, is that we have multiple roles in addition to being the chief law enforcement officer of the state. The attorney general is the chief legal officer under the Constitution, and what that means is that we advise all three branches of government: executive, judicial and the legislature as well. We work with the legislature on a myriad of issues to help them accomplish their legislative goals. Here we felt that it was no different, considering how close it seemed like we might be getting to legalization potentially passing.
So our instructions—to get back to your question—our instructions were to create a bill that would take the best practices of all the states that have come before us and to learn from their mistakes to the extent that we can to address the issues that are raised by law enforcement and public health officials to the greatest extent possible.
What state laws did you look at? At this point we’ve seen various approaches in different states.
Day: One of the laws that we focused on early on was Massachusetts, although we incorporated many different ones. I think it would make sense for Andrew to sort of explain why we kind of homed in on Massachusetts but then also the other state laws that we incorporated.
Andrew Goff: Going back to before General Lopez even was the attorney general, we had a working group in our office to basically look at various legislation and various statutes that were around the nation, and in Hawaii, and kind of identify certain issues for different departments. As you know, cannabis touches a lot of different various agencies. You’re looking at health, transportation, law enforcement—and that’s just to name a couple.
We had an internal working group that looked at a lot of these issues going back five or six years. And through that process, we started looking at a lot of different states, and I myself—because I represent the medical cannabis program in Hawaii—I’m familiar just through talking to other attorneys general and other state regulators with how different programs work and all that.
So when we sat down to actually write this thing, we started looking at, you know, almost all of the legislation and statutes that are out there now. We did key into a couple of just programs that we liked. And when we talked to programs, how they spoke of their program—and how their programs were spoken of in news like Marijuana Moment.
We did key in on Massachusetts as one of the top programs, one of the newer programs that were working well. So we kind of keyed in on that programmatically, but when we wrote the statute, we pulled from New York, Massachusetts, Rhode Island, Maine, Maryland. Yeah, New York has good statutes. Colorado, California… I mean, to the extent that we could take pieces that worked with our laws and with our precedent, we tried to adopt things that we we liked. We looked at a lot of statutes.
And then, maybe on the other side of that, what are some of the mistakes that you felt like you saw that you’re trying to have Hawaii avoid?
Day: I think one of the ones that sticks out in my mind is, first of all, the timing of the rollout and whether or not the state was prepared. And this is a little bit of a function of both the execution along with the law. One of the things in Hawaii that I think is maybe not the same as in some other states that were able to roll out quicker, is that the medical program is not as robust as in some states. There’s eight dispensaries that cover islands, right? So there’s maybe only one dispensary on Kauai, for instance.
What we were concerned about was legalizing too fast, where there would be, all of a sudden, this tremendous demand for legal cannabis, but without the supplies, so to speak, to do that—along with having the administrative and law enforcement infrastructure in place to ensure that it went forward in an orderly fashion.
One of the really important things in the bill, we feel, is that it provides for an 18-month transition period, where cannabis is not legalized yet during those those months, but it allows the administrative structure to get going, allows law enforcement to prepare, allows public education campaigns to move forward. And that’s perhaps an innovation that that we feel particularly good about.
With that length of delay, is your office prepared for the blowback from people who say, “People think it’s legal now, so they’re buying it from illicit stores, and now the black market is growing! Why didn’t we open up sooner?”
Goff: I think part of, to head that off, is the public education campaign which we are hoping to get up and running very quickly if a bill passes. Part of the legal part of the education campaign would would be geared towards what is legal and what is not legal, because I do think that there has been a dearth of information out there in some other states, and everybody kind of lives in this gray space looking for information. So to the extent we can get that information out as soon as possible, get a timeline established, and then really get things moving: get the regulatory agency together, get the rules together and then get applications moving as soon as possible. And I think that is one of the things that we would like to focus on the most.
Because there’s only eight licensees currently in the medical space, we can’t just kick in to legalization and have them be the only retail. So we need to, as soon as possible, get smaller businesses up and running and get the legacy operators on board to be able to fill out the demand that’s gonna come. Get them licensed, get them up and running—because it takes a while to get your operation up and running, to get your stock up. So give them a little bit of runtime, and then, when legalization happens, everybody knows when it’s going to happen and we have stores that are ready to go.
Kotoba Kanazawa: We looked at New York and California, and we really liked New York’s social equity program and then California’s aspect of trying to encourage growers to use renewable resources. But the thing is, about California and New York, they allowed lots of authority to for the counties to adopt their own regulations. The state did not control the industry in a uniform manner. They could get marijuana in this county but not in every county. I feel like that made the black market grow more robust.
Goff: Counties are actually different islands here, so it’s a little bit different. You can’t just drive over into another county. If we allowed them to have their own regulations, then the islands would look wildly different.
Can you explain how you interpret what are sometimes very conflicting claims in this discussion? As we’ve seen in the legislative hearings, some commenters come in and say, “The illicit market is growing like gangbusters, and youth use is skyrocketing!” and others come in and say, “Actually, no, that’s not accurate, and here’s this other study that says youth use has stayed the same or gone down.” Like, someone will tell you, “The fact of the matter is X,” and the next person will say, “The fact of the matter is not X.” How do you navigate what are very conflicting claims?
Day: One of the reasons I like this question a lot is because we feel the intent of the bill was to create a moderate, balanced bill. And so a lot of times it feels like our position is between two opposing, kind of polarized viewpoints. I think the way to resolve this is, first of all, public health claims, the way it works is we rely on our Department of Health for that. We believe in them and we trust them as professionals in this industry, because we know and work with them on a daily basis. On the law enforcement side, we understand there’s different viewpoints. There are people who we work with on a daily basis as well, who we know that are working in this area, and who we trust.
But I think from a philosophical point of view, the way to approach the bill—and kind of philosophically how we’ve gone about it—is to say, just: Take for granted that these things are potentially concerns raised by law enforcement, [that] the concerns raised by public health officials are true. How do we address that? Because I think that simply saying that these things won’t come to pass doesn’t create these environment that we need to be ready for the challenges that could arise. And so we try to kind of imagine a worst-case scenario and then try to figure out how it is that we’re going to mitigate those concerns.
And of course, every state is different. The basic intent of the bill is to prevent as many of the worst-case scenarios as possible, and in fact, to bring about good outcomes, if it was to come to pass. But it’s just not, I think—from our perspective in terms of protecting the public, protecting public health, protecting state interests—it’s not very helpful for us to be hopeful that the best situation will come to pass.
A couple peripheral questions: First, in terms of the cannabis expungements measure that’s been talked about in relation to this bill, I know there were some amendments from your office that were accepted that would turn that from a statewide policy to now a single-county pilot program that would only affect certain cases. Can you explain what led the AG’s office to make that recommendation?
Day: Sure, I can give you the broad outlines. This is a legislative issue that goes far beyond cannabis or expungement or anything. It concerns the state budget and the finances of the state following the wildfire on Maui on August 8. There simply isn’t the money available for kind of new projects that aren’t deemed necessary or crucial to the recovery, if that makes sense. With one expunger working at the Hawaii Criminal Justice Data Center, we felt that a pilot project to show how that would work, and potentially what resources would be required for a larger expungement program, would be appropriate, and we’re glad the Legislature supported that vision.
As in many states, there’s a discussion in Hawaii right now about unregulated hemp-derived cannabinoid products, specifically intoxicating products like delta-8 THC, chemically converted cannabinoids, things like that. How do you think products legalized under your marijuana bill would compare to products already on store shelves in Hawaii that are made from hemp?
Day: Let me just jump in with a quick clarification of the word “your bill.” One of the things that we’ve made clear is that while we drafted this bill—and this is one of those subtleties—Attorney General Lopez has made clear that we did so as our role in providing guidance to the legislature. SB 3335, it was introduced by the Senate. We view it as the legislature’s bill that we’re assisting them on. It’s not our bill.
Goff: As far as your question goes, hemp is an interesting issue, especially the intoxicating products. As far as the bill goes, the bill includes aspects of other states’ intoxicating hemp cannabinoid product legislation. It would limit the sale or restrict the sale or require a permit for certain hemp products, and it would also require specific packaging and labeling and testing. Now, currently, there are laws that do require all of those, but the enforcement is not there, because the national market, you know, you can just mail stuff in. And then also the funding for hemp derived cannabinoids is just not there. So the bill would take cannabis tax money and fund inspections and enforcement of hemp retails. The goal ultimately is to be able to tell, “What is a cannabis cannabis product? What is an intoxicating hemp product?” and differentiate that from CBD products or other hemp products that we would not consider dangerous public health.
Did your office sign on to the letter from state AGs urging congressional agriculture committees to take action on these hemp products?
Goff: Our office did sign on, for the same reason. If we could get Congress in the next Farm Bill iteration to clarify its intentions regarding intoxicating compounds and kind of control the national market a little bit, and then we focus on controlling the local market, then hopefully, over the next couple of years, everything kind of evens out and we’ll see a more controlled cannabinoid market.
Another more peripheral question: A lot of states, yours included, have been looking at psychedelics working groups or decriminalization or something along those lines, depending on the state. Have you given any thought to the similarities or differences between cannabis and psychedelics?
Day: We’ll respectfully decline to answer that.
And, back to marijuana, how did you decide how to approach homegrow?
Day: The issue of homegrow was one that we gave a lot of thought to. There’s some voices that would say that should not be allowed, and some people would say it should be broader than what we provided, which was six plants per individual or 10 plants per household. Our belief was that for our bill—or pardon me, for the agency’s draft that was provided to the legislature—to be, first of all, taken seriously by some of the legislators, it would need to have some aspect of that as a policy matter.
And we thought it was more important to provide safeguards in the bill than to exclude it altogether. We believe also that there is an aspect of this for controlling the illicit market, which is that if individuals are allowed to have the freedom to grow a limited number of plants, then that will discourage growth of the illicit markets, which would be detrimental to the legal one.
Goff: Our idea approaching homegrow was, if we’re going to allow it, it should be limited. If it if you’re growing too many plants, it’s a commercial aspect, right? So it’s an interesting aspect, because you have to draw the line somewhere. And what constitutes a commercial operation, what constitutes just a personal operation? So we looked around the states, and six plants seem to be the emerging number. Our medical program currently has 10, so we kept 10 plants for the medical patients and then six plants for personal growth.
To close, is there anything you wanted to bring up that I haven’t asked you about? Any parting thoughts?
Day: One of the things I think is unique about this—to draft a bill that would legalize business, protect state public health and public safety interests to the greatest extent possible—is the importance of the team. And I think that we did a good job. There’s so many different subject matter divisions in our office that basically touch almost every department in the state that needed to be consulted at one point or another, whether it was labor, whether it was education, whether it was criminal justice and data reporting—you know, it was everything.
But I think that the real key to be able to take this on is to have a team of core people. One person who’s kind of at at the executive level, one person who is a subject matter expert—in that case, it’s Andrew—and then Kotoba, who is our our legislative division, is the expert drafter.
When you’re drafting a bill, that’s—I believe our bill was 315 pages law when we gave it to the legislature—you need all aspects of this: the drafting, the expertise, along with somebody who can kind of corral and marshal the troops to come up with a project of this magnitude. And indeed, I think that this is probably the biggest legislative effort that our department has taken, at least in recent memory.
Goff: I just wanted to highlight some of the things that I think get lost in some of the rhetoric. One of the aspects is the various grant programs that we included, and I think that’s a big harm reduction aspect that doesn’t really get highlighted in a lot of the rhetoric. There’s a social equity grant program, and that would provide technical assistance and startup capital for smaller businesses and the legacy market to come into compliance and to be able to, you know, focus on growing and not as much on the regulations.
But there’s also, from a harm reduction student, included a public health and education grant program that can do the education campaign but can also provide public health grants to substance abuse treatment, to mental health treatment. And the social equity stuff also involves community reinvestment, so there’s aspects where you can get grant programs to nonprofit organizations that run youth centers and that run homeless shelters and things like that to bolster the community.
Also, the public safety grant program is not just for law enforcement, although that is an aspect. We can give grants out to law enforcement agencies for drug recognition training, for equipment like the Orange Photonics for what is hemp and what is cannabis. But also to harm reduction programs, like crisis intervention programs. We have one in Honolulu called CORE for responding to substance abuse and homeless issues, so the police don’t have to respond. I think that’s a really important aspect, that this cannabis money from taxes can go to kind of cut off these harms that are legitimate harms that people are worried about. You know, that’s part of the mitigation effort here.
Kanazawa: I don’t have much to add on as an engineer, but I wanted to make sure that this bill protects minors and that we promote small businesses, and that it has a robust social equity program. And I think we accomplished that.
Correction: An earlier version of this story misspelled Kotoba Kanazawa’s last name.
Photo courtesy of M a n u e l.
