Vermont lawmakers took their biggest step yet toward establishing legal cannabis sales for adults this week, as a conference committee of key lawmakers produced a final report outlining compromises, from advertising to a tax structure and firm caps on THC.
Some background on how Vermont got here: Vermont lawmakers legalized cannabis possession, use, and home cultivation in 2018, but not sales. Then, earlier this year, before COVID-19 put many United States legislatures on hold, the Vermont Senate and House chambers both passed S. 54, legislation that would tax and regulate cannabis sales, and a committee of six lawmakers formed to try to reconcile differences between the Senate and House versions of the legislation. Those lawmakers met, virtually, for the first time in August. Now that they have reached an agreement, the chambers will need to approve the reconciled version of the legislation, and then the bill will head toward Governor Phil Scott’s desk. A vote is expected in the House as soon as this week.
(Read Cannabis Wire’s coverage of previous meetings, and the compromises made prior to this week’s final push.)
One point of strong disagreement between the House and Senate was around the House inclusion of saliva tests for cannabis-impaired driving, but Governor Scott has made clear this is important to him. In fact, Governor Scott previously vetoed a cannabis sales bill, saying he would only approve such a bill under the condition that they’re included in any plan.
“I’m not sure that [drug recognition experts] alone would do it, from my perspective,” Scott told reporters last year. “I think we need some sort of a saliva test, at least to detect THC.”
Will Scott sign the bill if it hits his desk?
Senator Jeanette White, who participated in the conference committee meetings, said it’s anyone’s guess. When asked if she or other members of the committee had been in contact with Scott, or his administration, White told Cannabis Wire, “We have tried, but he has been keeping his options close to the chest. I am hoping he will sign, since we have given him a lot of what he wanted.” White added that lawmakers will know by the end of the first week of October, when statutory timing requires Scott to either sign, veto, or allow legislation to go into law without a signature.
The House and Senate agreed that saliva tests would be obtained by warrant and not conducted roadside. The committee report reads: “If the law enforcement officer has reasonable grounds to believe that the person is under the influence of a drug other than alcohol, or under the combined influence of alcohol and a drug, the person is deemed to have given consent to providing of an evidentiary sample of saliva.” This could bring a whole host of problems for law enforcement, namely because such a test is not widely available, or reliable. While blood tests are used in some markets, including Colorado, many jurisdictions rely on specially-trained law enforcement, also known as drug recognition experts, to detect impairment.
White said she is aiming to improve the legislation next year.
“I am uncomfortable with the saliva test even with a warrant but we will have time to work on that next year,” she said.
Vermont remains poised to be the most conservative program in the country. The report includes a compromise that cannabis flower with more than 30% THC will be banned, as will solid concentrate products with more than 60% THC. No other state has such a cap on cannabis flower sold for adult use. In addition, flavorings for vaporizer devices, other than those naturally occurring, will not be allowed.
Advertising remained a point of debate over the course of the conference committee meetings. Until this week, the House proposed a full ban on advertising, while the Senators in the meetings expressed concern over whether a complete ban on advertising would end up challenged in the court system. The two chambers found common ground in this area by agreeing that the executive director of the forthcoming Cannabis Control Board, working with the attorney general and department of health, would create a proposal on advertising, as it relates to the state’s medical and adult use programs.
In exchange for the House agreeing to compromise on advertising, the Senate noted in a memo sent to the House Tuesday that it “will agree to the House’s proposal regarding the State-assessed local license fees in lieu of the Senate’s proposal to have a 14% State cannabis excise tax on the retail sale of cannabis and cannabis products where … the equivalent of the revenue from a 2% tax … is dedicated to municipalities that host any cannabis establishment and apportioned to those municipalities under a formula.”
According to the report, the Cannabis Control Board is also expected to deliver to the General Assembly by January 15, 2022, a memo including a summary on its equity efforts, including “outreach, training, and employment programs focused on providing economic opportunities to individuals who historically have been disproportionately impacted by cannabis prohibition;” on delivery and online ordering, including a summary of “the advantages and disadvantages of allowing such services in Vermont;” and recommendations on any new types of licenses that should be considered, including craft cooperative licenses, delivery licenses, or licenses for special events.
Lawmakers are also seeking the Cannabis Control Board’s recommendations on whether there should be a minimum amount of cannabidiol (CBD) in cannabis products to “to aid in the prevention of the cannabis-induced psychosis that occurs in some users of cannabis and cannabis products.” (Research has not proven conclusively that CBD mitigates the effects of THC.) Another recommendation being sought is on the topic of “paraphernalia” sold at non-licensed shops, like the pipes and rolling papers for sale at convenience stores.
The committee report notes that online ordering and delivery are prohibited. During COVID-19, both became more common in the cannabis industry, as stores were required to reduce the density inside shops and offer more remote and distanced options to patients and consumers.
On the equity front, the bill also includes priority licensing for businesses owned by women and minorities, and priority for those seeking small cultivation licenses.
A seatbelt provision pushed by the House, which Senate lawmakers feared would disproportionately affect people of color, was not included in the report.
This piece was updated to include comments from Senator Jeanette White.