Recreational marijuana: What’s ahead for Oregon?

Rep. Dennis Richardson

On November 4, 2014, Oregonians approved recreational marijuana by a 56.10% to 43.90% majority. Ballot Measure 91 “allows possession, manufacture, sale of marijuana by/to adults, subject to state licensing, regulation, taxation.”

Since the Federal Department of Justice has made clear “marijuana remains an illegal drug under the [U.S.] Controlled Substances Act and federal prosecutors will continue to aggressively enforce this statute,” where does this leave Oregon users of marijuana and businesses that interact with those who choose to possess, manufacture, and sell the drug?

This article will address the following questions: What does Oregon’s new recreational marijuana law do and not do, what legal and practical issues are presented in Oregon, and where do we go from here?

What Measure 91 Does

Measure 91 gives the Oregon Liquor Control Commission (OLCC) authority to regulate the purchase, sale, production, processing, transportation and delivery of marijuana products, to grant and regulate licenses for the sale and production of marijuana, to collect the taxes and duties imposed by the measure, and to regulate and prohibit advertising related to marijuana. The OLCC is required to adopt rules by January 1, 2016 and must begin taking license applications byJanurary 4, 2016. Licenses will be issued for production, processing, wholesale, and retail elements of the industry, and the sale of marijuana is only allowed with a license. Measure 91 establishes an annual license fee of $1,000 plus a non-refundable application fee of $250 per license application.

Under the measure, anyone over 21 years is allowed to possess for personal use only a certain amount of marijuana (with some exceptions) starting July 1, 2015 (until that time, existing criminal laws remain in effect). Here are the conditions for personal use:

Each adult may purchase and possess up to 1 ounce of marijuana, in public, so long as consumed out of public view.
Inside each household: 8 ounces of useable marijuana; 4 marijuana plants not in public view;
1 pound of solid homemade marijuana products; and 4½ pounds of liquid homemade marijuana products.
Delivery of 1 ounce of homegrown marijuana for noncommercial purposes between adults 21 years or older.

Generally, Oregonians are not allowed to produce, process, or sell marijuana except under license from the OLCC. Exceptions include the household production exemptions listed above. Further, Marijuana may not be imported or exported to and from Oregon.

Finally, the law taxes the commercial producers of marijuana at $35 per ounce of flowers, $10 per ounce on leaves, and $5 per immature plant, with the taxes collected by the OLCC and distributed as follows:

40% to the Common School Fund
20% to the Mental Health Alcoholism and Drug Services Account
15% to the State Police Account
10% to Oregon cities for enforcement of the measure
10% to Oregon counties for enforcement of the measure
5% to Oregon Health Authority for alcohol and drug abuse prevention, early intervention, and treatment.

A comparison of Oregon, Washington, and Colorado’s recreational marijuana measures has been produced by the OLCC. In addition, OregonLive has produced a glossary of marijuana terms like “hashish”, “tincture” and “flower”.

Measure 91 Does Not….

Allow marijuana use, possession, or sale by those under 21 years, even at home.
Allow cities or counties to prohibit marijuana sale, production, or use, except for “reasonable time, place and manner regulations” or except by citizen vote at a general election under a petition signed by 10 percent of voters.
Dramatically alter state funding for schools or public safety. Preliminary estimates are “the state’s annual earnings from marijuana will hit $16.5 million in 2017 and $24.3 million by 2019.” (click here) The total share of marijuana proceeds actually going to schools in “2017 will amount to about $55,000, or less than the average cost of one teacher in a state that employed about 26,400 in the 2012-13 school year.” Yes, that’s a total of $55,000 shared among Oregon’s 197 school districts. (Not exactly a financial bonanza for Oregon schools.)
Allow marijuana to be smoked or consumed in public. (click here)
Set intoxication levels (unlike Washington and Colorado, which established 5ng THC/mL of blood as the per se intoxication level (click here). Instead, Measure 91 directs the OLCC to investigate the influence of marijuana on the ability of a person to drive a vehicle and on the concentration of THC in a person’s blood).
Change state laws regarding, landlord-tenant issues, driving under the influence, minors in possession, federal government requirements, or employment law. (click here)
Change federal law, which still classifies marijuana as a controlled substance.
Alter the Oregon Medical Marijuana Act. (click here)

Legal and Practical Issues with Implementing Measure 91

There is currently no equivalent to a breathalyzer test for quick determinations of intoxication. Washington researchers are working on a breath test. (click here)
Marijuana is addictive. It is a drug. It presents a public health and safety issue and preventing increased used – particularly among minors, whose brains and bodies are still developing – is paramount. (click here)
Before a cent of marijuana tax revenue is collected, the OLCC is requesting over half a million dollars to begin implementing Measure 91. (click here)

Proposals for Changes to Measure 91

Oregon voters have spoken and Measure 91 is now Oregon law. It now will be up to the OLCC and the Legislature to implement Oregon’s recreational marijuana laws in the best ways possible. To that end, we can learn from the experience gained from Washington State and Colorado. We support careful consideration of those laws, as well as a full debate about the following suggestions recently made by the Oregonian Editorial Board: (click here)

Granting authority to allow cities local taxing authority.
Establishing a per se (or “presumptive”) level of impairment in statute, much like the blood-alcohol thresholds for drunk driving offenses.
Making alterations to the medical marijuana markets and law, so that a standard set of rules apply to both Oregon’s medical and recreational marijuana statutes.

Your Voice: What do you think – How should Oregon implement Measure 91?

Since regulating and taxing the growth, sale and use of recreational marijuana is unchartered waters for Oregon, the Legislature will benefit from recommendations from you, the Oregonians who will be most affected by this change in law.

If you have ideas, comments or suggestions about how best to implement Measure 91, please share them with us by clicking here.

Oregon Catalyst