During last year’s campaign for Proposition 64, which made recreational marijuana legal for adults under California law, proponents of the measure repeatedly argued that it would protect small marijuana farms and mom-and-pop cultivators, many of whom have operated illegally for decades.
That’s because the initiative barred the state from licensing any marijuana farm larger than one acre until 2023 — or at least that’s what voters were led to believe when they passed Proposition 64 overwhelmingly. Nevertheless, a state agency has quietly, mystifyingly issued a rule that could circumvent the proposition and open the new state market to Big Weed.
The five-year head start for small farmers was a concession specifically designed to win support — or at least quell some of the opposition — from growers in Northern California’s Emerald Triangle, who worried that well-funded corporate cannabis interests would crush them right out of the gate. The delay in Proposition 64 would give them time to get licensed under the new state regulatory regime and carve a toehold in the new legal marketplace for recreational pot.
But it wasn’t just farmers pushing for limits on the size and scale of the marijuana growing sites. A Blue Ribbon Commission on Marijuana Policy created by Lt. Gov. Gavin Newsom recommended in 2015 that the state limit the size and power of marijuana businesses and offer incentives for smaller operations.
“The goal,” the commission’s report said, “should be to prevent the growth of a large, corporate marijuana industry dominated by a small number of players, as we see with Big Tobacco or the alcohol industry.” The fear was that a multi-billion-dollar Big Weed industry would have the lobbying and political power to bend regulators to its will and undermine public protections.
It appeared that state regulators shared that goal. The California Department of Food and Agriculture released an environmental impact report on the new licensing program for marijuana growers in early November that indicated the state would limit license holders to farming one acre or less.
So growers and other industry watchers were shocked last month when the emergency regulations issued by the department did not limit the size of marijuana farms as expected. Instead, the rules allow applicants to seek an unlimited number of small-farm licenses, each of which allows up to 10,000 square feet, or roughly one quarter-acre, of pot cultivation.
The department has said that cities and counties are welcome to set their own limits on farm size based on community needs. But there’s nothing in the state regulations to stop businesses from applying for multiple small-farm licenses and amassing far more than an acre for cultivation. The emergency rules are meant as a stop-gap until permanent regulations are adopted in six to 12 months. Still, they open the door to large-scale pot farming operations immediately, not five years later as Proposition 64 stated.
Sen. Mike McGuire and Assemblyman Jim Wood, two Democrats who represent much of the Emerald Triangle, have pressed the Department of Food and Agriculture to cap commercial marijuana cultivation at one acre per applicant. They worry corporate interests will snap up land, mass produce marijuana more cheaply and drive long established cannabis farmers out of the business — or back underground to perpetuate the black market that Proposition 64 was supposed to reduce.
This is a troubling loophole. Voters were told that the new legal and regulated marijuana market would be built around small- and medium-sized farms, at least in the early years. There may be legitimate arguments over whether such protectionism is effective, necessary or good public policy. If critics don’t like limits on farm size, however, they ought to take those concerns to the Legislature. Proposition 64 gave lawmakers, not state agencies, the authority to change the regulations. It’s worrisome to see state regulators backtracking on the intent and spirit of the initiative so quickly and with so little public discussion.