By Leland Berger
These are exciting transitional times in Oregon as we move from unregulated medical distribution through regulated medical distribution to legalization and regulated responsible adult use. Here are the details.
Since the passage of the Oregon Medical Marijuana Act (a registry identification card law) in 1998, Oregon activists have been searching for a lawful, rational means of distributing cannabis to those who need it therapeutically. Initially, the law allowed possession away from the garden of only one ounce and prohibited use (including transfer) in public and transfers to non-cardholders specifically and to any one “for consideration.”
Advocates concluded that distribution of less than an ounce, for free, between cardholders was protected by the OMMA and would host gatherings where there would be enough patients to make the transfers protected.
In 2005, this patient-to-patient transfer for free was codified as “not delivery” and growers were permitted to receive reimbursement from their patient “for the costs of supplies and utilities only and no other costs, including labor.” Advocates broadly read this to create a right for any patient (or their caregiver) to reimburse any grower, and farmers markets and dispensaries arose to facilitate these transfers.
These facilities were either left alone, like in Multnomah (Portland), Deschutes (Bend) and Marion (Salem) counties, for example. Or they were raided and shut down, like in Washington (west of Portland; silicon forest), Jackson (Medford and the southern end of I-5) and Malheur (Southeast Oregon at the Idaho border) counties. These prosecutions have almost all concluded.
For the most part, prosecutors recognized the historical times, and again for the most part, the most highly publicized of these prosecutions resulted in misdemeanor convictions.
As these facilities were expanding, advocates were working to legitimize them. In 2003 and again in 2010, initiatives qualified for the ballot to create a licensed and regulated medical distribution system only to be defeated at the polls. Finally, in 2013, the Oregon Legislature enacted House Bill 3460. In August 2013, the governor signed it into law.
HB 3460 allows medical marijuana patients (who own all the medicine cultivated on their behalf) to authorize the grower to transfer the medicinal cannabis (in whatever form) to a licensed medical marijuana facility. The facility (dispensary) is allowed to fully reimburse the grower and is, in turn, allowed to be fully reimbursed by the patient or his or her caregiver.
Rules implementing HB 3460 were finalized earlier this year. On March 3, the Oregon Health Authority began to accept applications. The main limitations are that dispensaries can’t be within 1,000 feet of a school or 1,000 feet of each other. Municipalities reacted in different ways. Areas which had previously tolerated unlicensed and unregulated dispensaries continued to do so; municipalities (and some counties) did not.
The municipalities and counties intolerant of (and in some cases actually bigoted against) the regulated distribution of medicinal cannabis either amended their business ordinance (by requiring compliance with federal law and enforcing this only to the distribution of medical cannabis) or by enacting moratoriums on dispensaries.
This inevitably led to litigation, which, in turn, caused the Oregon League of Cities and Association of Counties (which, along with the Sheriffs Association, Chiefs of Police and the Oregon District Attorneys Association, remain the organized prohibitionists in Oregon) to successfully lobby the 2014 Legislature to pass a bill allowing moratoriums, so long as they were enacted before May 1, 2014 and sunset by May 1, 2015.
They have announced that they intend to seek to make this permanent in the 2015 Legislative session.
So what’s going on right now (as of June 20, 2014) in Oregon? Two things, in addition to the last dispensary prosecutions winding down.
Thing one is litigation seeking to have HB3460 declared unconstitutional as preempted by the federal Controlled Substances Act. These cases are principally in Southern Oregon trial courts (Josephine and Jackson counties) and are destined to be resolved in the Oregon Supreme Court within the next several years.
The second is the collection of signatures for three responsible adult-use legalization and tax-and-regulate initiative measures.
One is a constitutional personal rights initiative; the second is a reworking of the Oregon Cannabis Tax Act (the initiative narrowly defeated in 2012) and the third is the New Approach Oregon initiative, which is well-drafted, well-funded and likely to get on the ballot and pass.
Notwithstanding its ill-chosen name choice, this initiative builds on and fixes some of the problems with New Approach Washington’s Initiative 502 and incrementally moves reform forward toward real legalization. We would leave the Oregon Medical Marijuana Act and Oregon’s DUII law alone. We would allow home gardens of four plants and eight ounces (smaller than Colorado’s six plants allowed). We would also allow, at home, 72 ounces of liquid infused; 32 ounces of solid infused and one ounce of oil.
Four times these limits is a misdemeanor (which is why it is decriminalization and not legalization; legalization would be limited to a non-criminal fine). It would allow our Liquor Control Commission a year to come up with regulations for production, processing, wholesaling and retailing for responsible adult (over 21) use. It would tax production at $35 per ounce for the flowers, $10 per ounce for the leaf and $5 for a starter plant. As Oregon has no sales tax, and assuming no legislative changes, these would be the only changes.
Regarding taxes, we make it more difficult for municipalities or counties to opt out by having tax benefits attached to having dispensaries in their communities, and, if they opt out, it automatically is referred to the people for a referendum.
Which is to say we are going as far forward as we politically can, leaving it to California in 2016 to take us the rest of the way home.
Leland R. Berger is an attorney who practices statewide in Oregon from his office in Northeast Portland, where he operates
Oregon CannaBusiness Compliance Counsel, LLC. He is a recipient of the Oregon Cannabis Industry Association Lifetime Achievement and NORML Citizen Activist of the Year awards.