Will Oregon legalize marijuana?

Oregon's ballot is breaking new political ground -- maybe too fast for its citizens and the country at large

Published October 9, 2012 1:13PM (EDT)

  (Reuters/Cliff DesPeaux)
(Reuters/Cliff DesPeaux)

This article originally appeared on AlterNet.

AlterNet This is the age of marijuana reform, but we’re still, realistically, a long way from legalization. Three states — Oregon, Washington and Colorado — are cruising ahead to an election with marijuana legalization initiatives on the ballots, and, depending on what happens, 2013 could be a lot more mellow.

Two of the measures have majority support — 57 percent of voters in Washington, and 51 percent of those in Colorado are pro, according to polls in early September — and they’re raising cash by the bucket-load (George Soros, Progressive Insurance chairman Peter Lewis). But Oregon’s pro-legalization movement seems to be at a standstill; roughly 40 percent are for legalization, 40 percent are against it, and a whopping 20 percent of voters are still undecided. What’s worse, the AP reported last week that the campaign only has $1,800 left in the bank. Legalization might happen, but it’s looking like Oregon might not be the game-changer.

The lack of steam may be, as the Oregon Cannabis Tax Act’s author, top contributor, and chief petitioner Paul Stanford says, because the other two states had measures drafted by large organizations who already had deep pockets attached. Or it might, as Allen St. Pierre, the director of NORML has claimed, be related to Stanford’s business reputation — bankruptcies in the 1990s, accusations from investors of non-payment, recent tax settlements — which makes big donors see him as untrustworthy. Or it could be that, despite its reputation as a pot-friendly state, Oregon voters are simply not ready.

And it might all just be a moot point. Even if the measures do go through, federal regulations aren’t going to change, and the DEA isn’t likely to ignore its powers over state law; since Obama took office, there have been over 200 raids of legitimate marijuana businesses.

But Oregon isn’t just trying to sneak the legalization in the back door: Stanford, a long-time hemp and medical marijuana advocate, has been drafting this measure since 1988, and has come up with one of the most progressive laws, and some lofty economic ambitions: bring the state $140 million a year in tax revenue, save it $61.5 million in law enforcement costs, and maybe end the U.S. reliance on foreign oil, to boot. But things that make Oregon’s measure unique — industrial hemp of all sorts left to unlicensed farmers, being written with the explicit intent of federal appeal — might also prevent it from getting as far as the others. “It would completely change the whole paradigm,” says Stanford.

1. It’s the only one to set up its own governing board.

The initiatives on the ballot in Colorado and Washington give existing boards the authority to regulate marijuana (the Department of Revenue and the State Liquor Authority, respectively). But Stanford’s proposal would establish an entirely new body, the Oregon Cannabis Commission (OCC), to oversee the legalization process. The first group of seven individuals, appointed by Governor John Kitzhaber (a Democrat who opposes the bill), would have two months after being appointed, until February 28, to establish some basic guidelines — like wholesale prices and THC testing practices — and begin issuing licenses to growers, processors and retailers. These seven people, presumably already involved in the Oregon cannabis industry, would have a term of one year. After that, the license holders would elect five representatives to a one-year term, and the governor would appoint two for a term of two years.

“I think this is pretty laughable,” says Kevin Sabet, director of the University of Florida’s Drug Policy Institute, and vocal opponent of all three legalization measures. “The idea that you’re going to have this run by people with a vested interest, people who grow and produce marijuana, is pretty interesting.”

However, as Stanford points out, this kind of board is not uncommon. In drafting this section of the act, he was hesitant give control of the process to the liquor control board, after his research showed that 15 percent of Oregonians had a negative opinion of the board, and were therefore less likely to support a measure in which they were given so much additional authority. He decided to look elsewhere for a model.

When you look at other government commissions, Stanford explains, this is the norm. “The board of pharmacy requires that pharmacists make up the commissioners; the medical board requires that physicians be the ones to govern the medical board; and in Oregon, we have a number of agricultural commissions, and the law is that 70 percent of the makeup of those commissions have to be people in the industry.”

Instead of career politicians or misinformed members of the public, it could be people who know and understand the different chemical compounds found in marijuana, the effects they have, and the danger they could present.

Of course, there is also the worry that a term of one year could mean constant campaigning, pandering to the small group who could vote for representatives. What would stop the commission from doing the best thing for licensees, instead of what is best for the people of Oregon?

“Well the legislature would be able to address that, because in Oregon, the legislature can revise initiatives immediately.” So if Oregonians thought there was anything fishy going on, or weren’t happy with the guidelines the board was setting up, they would be able to take it up with the legislatures, who would have the ability to revise the measure? “Certainly.”

2. It’s written to get the attorney general to bring it to the Supreme Court.

Some have criticized the flowery opening language of the bill as laughable; one local paper went as far as to describe it as “a 'Saturday Night Live' comedy sketch. True, the preamble goes though a somewhat humorous condensed history of the cannabis plant: George Washington’s cannabis crops; Thomas Jefferson’s invention that processed cannabis; the writings of Gouverneur Morris (Founding Father, contributor to the Constitution), who concluded that cannabis was “to be preferred” over tobacco; its cultivation for “10,000 years without a single lethal overdose”; God’s gift to mankind in Genesis of "every seed-bearing plant on the face of the whole earth,” and how denying this to the public violates their Natural Rights according to the Oregon Constitution.

But Stanford says he didn’t add this level of detail simply for literary effect. Instead, the history — along with the “it’s not a gateway drug” and “it’s actually not as bad as alcohol” arguments standard in all legalization measure preambles — could help when the law eventually makes its way to the land’s highest courts.

“We set up a number of findings by the people in a preamble to our initiative that were specifically designed to address the federal supremacy issue,” says Stanford. “I think out of [the three] initiatives, ours is the only one that deals with the federal issue head on. We designed it to be upheld in federal court, and always looked at a federal court challenge as being inevitable. We did that by creating seven findings by the people of the state, and those are based on historical, scientific, legal and constitutional issues.”

This, Stanford hopes, will be more than just empty arguments. In a program funded by the application and license fees collected by the OCC, the attorney general will have a new facet to her job — Ellen Rosenblum would be charged with defending the act as far up as the Supreme Court, and even lobbying Congress for a new national approach to pot. “The Attorney General shall vigorously defend this Act and any person prosecuted for acts licensed under this chapter, propose a federal … act to remove impediments to this chapter, deliver the proposed federal … act to each member of Congress … and urge adoption of the proposed federal … act through all legal and appropriate means.” Let’s just hope the AG’s game, cause this will be no easy argument.

3. It’s set up as a “scientific experiment.”

Which almost sounds like it’s prepared to fail. But this sentence, says Stanford, is a partial step toward making the act legally viable. The UN’s 1961 Single Convention on Narcotic Drugs, the treaty that is still the standard for international drug law, states that cannabis and other drugs are allowed, so long as they are “consumed for medical and scientific purposes.” If the legalization process itself is an experiment, then it could get around breaking any long-standing international laws. “We carry it out like a scientific study,” says Stanford, “to show that the end of cannabis prohibition is beneficial, and not detrimental.”

However, this phrase is more than just legal maneuvering. The OCC will be required to study the hell out of the cannabis plant and how ingesting it affects the human body. In conjunction with the State Board of Pharmacy, they’ll fund studies for everything from the optimal intake methods, to the extent of lung damage caused by cannabis smoke, to the best ways to test for intoxication. Not only will these be published to help understand the effects of cannabis, they will be neatly printed into pamphlets and available at OCC retail shops to peruse as you wait in line for your carefully packaged eighth.

4. It would mean that hemp products could be grown from ANY cannabis plant.

As many legalization advocates point out, cannabis has been around for thousands of years, compared to less than a century of regulation.

“Archeologists agree, cannabis is among the first crops purposely cultivated by human beings,” explains Stanford. “Carl Sagan, in his book "Dragons of Eden," postulated that it could very well be the first. So we've taken the oldest agricultural crop, one that produces more fuel, more fiber, more feed, more medicine than any other plant on this planet, and that's the one that's illegal.”

There are currently about 20 states that have passed laws allowing industrial hemp, a plant that has a wide range of uses, is naturally pest-resistant, and could, according to some, single-handedly save our economy. However, there is not even one large-scale legal hemp farm in the United States at this point — because of the 1970 Controlled Substances Act (and the 1937 Marihuana Tax Act before it), even though it contains only trace amounts of THC, the psychotropic chemical in pot, it is illegal to grow without a DEA permit. And thus far, the agency is staunchly opposed to issuing them. Another complication for US hemp farmers, Stanford explains, is that other countries — like Canada and France — that allow large-scale industrial hemp rely on certain patented low-THC seeds that the DEA will not allow into the US.

“There's only one company in the world that produces seed that's less than three tenths of one percent,” says Stanford, “and that's a special patented French variety from a French company. So without a DEA license to import those seeds, there's no way that the farmers can cultivate that, what I call dwarf hemp.”

But in the Oregon Tax Act, Stanford makes a clear distinction between marijuana and hemp: marijuana is the “flowering tops … derivatives and preparations” that contain enough cannabanoids to get high, while hemp is the leaves, stalks and seeds used to make everything from biodiesel and plastic to paper and T-shirts. Under the new law, the board would heavily regulate marijuana production and sale, but hemp would be license-free, a new “cash crop” for anyone who wanted in.

It doesn’t, however, denote which strains of the plant could be used for industrial hemp. The seeds and young plants of all varieties would be considered non-regulated “hemp” — which means that any variety of cannabis, so long as it’s grown to be harvested for food, fuel or fiber, will be considered completely legal to grow without a permit.

Stanford says that the smaller plants, those designated as “low-THC,” do not yield the same amount of product as the psychoactive strains. “Our initiative mandates that the strains or varieties of hemp that are used for fuel, fiber and food be the ones that produce the most quality, the best quality, most quantity of hemp,” says Stanford, who believes the high-THC cannabis will be “much more productive.”

“If you're growing for seed oil and seed protein, the primary consideration should not be its THC content, it should be the best quality and quantity of those products.” No matter which plant they come from.

5. This wouldn’t mean a free-for-all.

Part of what seems to be scaring off supporters in Oregon is the impression that since their approach to regulation is radically different from the other states, that means residents will be able to get stoned whenever, and wherever, they please.

If you were hoping to bring a little spliff along to your next picnic, think again — there’s a $250 fine for consumption in public. However, adults will be able to smoke in places that don’t allow or employ those under 21, if the establishment so chooses. (Mini “Marijuana Allowed Here” signs would be all the rage at airport gift shops.) Some places could even apply for a license to sell pot and let people light up on premises: “It would also allow things like brew pubs and wineries, where people could grow their own and produce and package it and sell it to people who want to tour the area.” A marijuana flight, followed by a stroll through gardens on a summer afternoon? Why not? “Here in Oregon, wine is a $3-billion-a-year industry, it employs 20,000 people. And the craft beer production and the brew pubs amount to over $2 million a year.” For a state struggling with unemployment, this could actually make people more productive, not less.

There are also regulations in the measure to protect children from marijuana — after all, a chief argument for the legalization community has been that blackmarket products like pot are actually more accessible to young people than legalized substances like alcohol. Selling to minors will be a class B felony, and providing them with a “gratuitous” amount will be a class A misdemeanor. Even the minors themselves, if caught with marijuana, will be fined $250.

One thing they left out was any change to the current “drugged-driving” regulations — driving under the influence is still driving under the influence under the new law. They also didn’t address employment, or include a guarantee to workers that their employers would have to tolerate use, on or off the job.

“We don't address it, and the companies will be free to employ [whomever they want]. You know, currently people can be fired for testing positive for tobacco by some companies because of the higher costs imposed by tobacco use. So it wasn't an issue we wanted to get in the middle of.” Any employees who are currently required to submit to drug screenings — like commercial drivers — could still be dismissed if their cup came back positive for pot. “Currently people can be fired for testing positive for tobacco, so it wasn't an issue we wanted to get in the middle of.” Still, he says, this could be the turning point the anti-prohibition movement needs so someday getting canned for smoking pot would seem just as strange as getting fired for a pack of Camels. “I think that when we legalize it,” he says, “that will change the whole dynamic.”

By Elisabeth Garber-Paul

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