(This story is part of a package on the ten-year anniversary of adult use cannabis legalization in Colorado and Washington. You can read the other stories here.)
Colorado and Washington made history ten years ago, on November 6, 2012, when they became the first jurisdictions in the world to legalize cannabis possession and sales for adults, Washington with a measure called Initiative 502, and Colorado with one called Amendment 64.
Since then, legal cannabis has spread to states from coast to coast, and from Canada to Uruguay. By next week, with voters in five more states deciding on legalization at the ballot box, cannabis could be legal in nearly half the country: twenty-four states and Washington, D.C.
Cannabis Wire turned to two of the people who spearheaded the ballot campaigns ten years ago in Colorado and Washington: Mason Tvert, of Colorado’s Campaign to Regulate Marijuana Like Alcohol, and Alison Holcomb, of New Approach Washington. Today, Tvert is a partner at VS Strategies, a Denver-based cannabis consulting firm, while Holcomb is the director of political strategies at ACLU-WA.
(These conversations have been lightly edited for clarity and space.)
Cannabis Wire: Has legalization unfolded in the way that you had hoped?
Holcomb: There are key aspects of how cannabis legalization has unfolded that have been critical and really are in alignment with what we hoped to achieve by passing Initiative 502. And that’s first and foremost that we broke a significant crevice in the wall of cannabis prohibition and established for other states and other jurisdictions around the world that it was in fact possible to move away from the prohibition model, and that the United States federal government was going to sit back and allow responsible experimentation to go forward.
And I specifically mentioned the global reforms as well, because I think at the time that we passed Initiative 502, we weren’t necessarily thinking about the impacts of the [United Nations global drug control treaties] and how the federal response to Washington and Colorado would be perceived by other countries. It was consistent with what we hoped for. But, it was beyond our hopes and dreams that that change would begin to occur outside of the United States, as well.
Tvert: It’s a difficult question. Big picture? Yes. And then with regards to details, it’s a little trickier.
The goal of Amendment 64 was to end cannabis prohibition by allowing for the regulated production and sale of cannabis to adults. And that is exactly what is taking place in Colorado.
When it comes to certain other aspirations, eliminating the underground market of cannabis, now that’s trickier because that’s something that’s being driven by other states’ failure to control cannabis, not by Colorado’s decision to legalize it.
There is still a disproportionate impact when it comes to citations for cannabis-related behavior that remains illegal, such as consuming in public. Obviously, there are still areas in which we see a need for continued discussion and hopefully for improvement. It’s a broader policing issue, just like the illegal market is a broader federal and state kind of policy issue than just Colorado alone.
Cannabis Wire: If you could imagine going back and doing anything differently, I’m curious, what would you change?
Holcomb: I don’t think there’s anything I would have done differently in 2012 because that was a very specific political context. And the challenge we were presented was to try to pass the first ever legalization and regulation law in any jurisdiction in the world. And so we intentionally drafted conservatively and didn’t include a number of features that now, with the benefit of seeing the evolution of policy as it’s been carried forward in other jurisdictions, now there are certainly changes I would like to see and improvements I would like to see implemented—both here in Washington State and in other jurisdictions, and especially jurisdictions that are considering moving in this direction and are currently still in a kind of prohibition model. And most of that is around social equity, access to the marketplace by people who have been historically marginalized and had their communities disrupted by prohibition.
And also for state regulators to have both a racial justice and an economic justice lens, because so many of the people that have put food on the table through the illicit cannabis market to date are not, of course, the major cartel operators, multinational drug kingpins. They are, generally speaking, mom and pop operations across the country. And being able to apply some regulatory structure to allow small businesses to flourish, to have more people who are able to make a decent income off of this new industry than we’re seeing in places where consolidation and industrialization appears to be underway.
Tvert: One of the biggest things that advocates, legislators, and regulators say, one of the criticisms, or at least regrets, we hear is not addressing social equity earlier on. When it came to the drafting of Amendment 64, it wasn’t so easy. It wasn’t cut and dry.
There were, number one, political questions around whether the initiative would garner as much support if it included complexities around social equity licensing or what have you. There were also legal questions. Would that create openings for legal challenges to the proposed system? Would it raise single subject questions with regard to the ballot initiative law?
It’s really difficult to say, “oh, we should have included that.” Would we have wanted to if we could? … Yeah. It’s just not that easy.
And while it’s certainly not one that’s been resolved, there is a great deal of effort being put into that area, both by our government as well as by the industry.
Cannabis Wire: Is there any universal or broad advice that you would give to states coming on board based on what you’ve seen?
Holcomb: I think asking the cannabis industry to take a hard look at itself, and regulate itself, might be wishful thinking on my part.
So, I would ask state regulators to look at the public health impacts of the way that they structure the regulated market and really lean in to the idea that they have an opportunity to create a marketplace for an intoxicating or vice product that looks very different from the alcohol and tobacco industries.
I don’t think we’ve done our work yet to minimize the risk of sliding into the 20/80 rule—20% of the users of a product making up 80% of its profit. And that’s a risk if we move into an industry that is centralizing and adopting capitalist, public shareholding approaches to quarterly profit earnings.
Tvert: There will always be variables depending on the existing cannabis-related programs in a given state or jurisdiction, if they already have an existing medical system versus if they don’t, depending on various elements of their government.
We just did this event and Dominique Mendiola, head of the Marijuana Enforcement Division, the top cannabis regulator [in Colorado], gave an answer that I thought was great.
When cannabis legalization was first implemented, the Department of Revenue staffed up with law enforcement and took a very law enforcement-heavy approach to regulation. They had a bunch of cops with guns and badges who were tasked with enforcing the regulatory system, and it didn’t work as well as it has now, where they have scientists and policy specialists. They’re people who, rather than going and breaking down the door, they go and knock on the door or send an email. They’ve been able to accomplish things so much more effectively and more efficiently now.
The more that cannabis can be treated like a legal business, the better it is for everybody, not just the businesses, but also the communities. So I think that that’s a big lesson. What we see in a lot of these states that are adopting these laws as they make the transition, they’re treating cannabis as if it’s nuclear waste and requires more regulation than casinos and prescription drugs when in fact, this is a substance that’s relatively less harmful than alcohol. And the laws and regulations should reflect that.
Cannabis Wire: What’s the biggest remaining policy hurdle?
Tvert: I think social equity continues to be a challenge. Different states have tried different approaches and they’re learning from one another and experimenting. And I don’t know that any state has necessarily found the magic bullet. But, this is the type of experimentation that we want to see, states learning from one another and finding out what works.
We’re finding that it’s really not enough to just provide a leg up in an application process. You can say, ‘yeah, you can have a license.’ But what we find is that many of these businesses don’t have the same access to capital. So, just giving someone a license and not helping them with finding access to the capital they need to actually get a footing and to compete in this very competitive industry is just not enough. And so that’s why we’re seeing states start to look at the small business loans. And, Massachusetts just adopted some changes, their first big overhaul since implementation, which our attorneys were very involved in. Essentially, it’s going to start creating a pool for money that can then be distributed to social equity applicants.
Holcomb: We’re at a moment now where we can still decide what the marketplace looks like. And if there is not an intentional approach by state lawmakers and regulators to shape something different, there’s no reason for us to expect different outcomes than what we’ve seen when alcohol and tobacco are captured by industry lobbyists. And I think that’s what we are starting to see.
Here in Washington State, I am very hopeful that we will see craft cannabis licenses and small farms that resemble tasting rooms. And that there will be a social movement toward a different kind of appreciation of the history of cannabis and its prohibition and the social and racial impacts of that. And there will be a culture that’s cultivated by the owners of these small businesses across the state. And I hope that that, you know, I am surprised to wake up in five years and find an industry that looks much more like that than it looks like big alcohol and big tobacco.