California voters decided last year that the sale of recreational marijuana should be made legal, beginning on Jan. 1, 2018. But Proposition 64 left many of the details to local governments and state regulators. So the last several months have been a race against the calendar, as officials have sought to develop rules governing where, when and how businesses may grow, transport and sell marijuana to adults.
Last month, the state unveiled 276 pages of regulations for the new recreational pot marketplace. Among other things, the rules set hefty licensing fees, regulate how much THC will be allowed in edibles and other cannabis products, and require marijuana businesses to track their product from seed to sale.
While the state set many of the industry rules, cities and counties were left to decide whether they want to allow marijuana businesses to set up shop in their jurisdictions. San Diego passed its permitting rules in September. Sacramento, San Jose and San Francisco passed laws in recent weeks allowing recreational cannabis sales, and the Los Angeles City Council this week approved regulations for what will likely be the nation's largest market for marijuana.
None of it has been easy. Even though voters in California overwhelmingly supported Proposition 64, the process of actually legalizing the growing and selling of marijuana for recreational use has been a painstaking balancing of interests and concerns.
Cities want to give permits to enough marijuana businesses to meet demand, eliminate the black market and raise significant tax revenue, but they don't want to inundate or overwhelm communities with pot shops. Some cities, such as L.A., want to help people who were disproportionately affected by the war on drugs profit from legalization, but they also want to make sure they don't allow people who committed violent or serious felonies in the business.
By and large, state and local officials are treating marijuana legalization with gravity and care, trying to get the details right. And yet, despite all their hard work, there is a dark cloud hanging over California: Jeff Sessions, the U.S. attorney general.
The problem is this: Despite the passage of Proposition 64, marijuana remains illegal under federal law. The federal government designates cannabis as a "Schedule 1" drug, meaning that it is as addictive as heroin and has no medical value whatsoever, which defies common sense. Federal prohibition has not stopped eight states, including Colorado, Washington, Oregon and now California, from legalizing recreational marijuana markets.
The conflict with federal law has been a complicating factor for a long time, going back to the early days of medical marijuana. But under the Obama administration and in the early days of the Trump administration, the state and the feds managed to work together. Now, however, mixed messages from the Trump administration and recent statements from Sessions, a vocal opponent of legalization, are making it harder for California to launch its regulated marijuana marketplace with confidence.
Late last month, Sessions told reporters that his office was looking "very hard" at recreational marijuana. "It's my view that the use of marijuana is detrimental, and we should not give encouragement in any way to it, and it represents a federal violation, which is in the law and is subject to being enforced," he said, adding that the department was working toward a "rational policy."
There's no telling what Sessions views as a rational policy or whether he intends to reverse the Obama administration's hands-off approach. A few weeks earlier, Sessions told Congress that the Department of Justice was still following a 2013 memo on marijuana. That policy stated that the federal government generally would not interfere with states that allowed the commercial sale of marijuana as long as there are were strict regulations in place, including rules to prevent sales to minors and to block criminal enterprises from participating.
Pragmatists argue that marijuana legalization would be awfully difficult to stop at this point. Repeated polls show that a majority of Americans support it. Any attempt to enforce prohibition at this point would create a major market upheaval at the very least, if not a voter rebellion. And yet this is an administration that frequently ignores broad public opinion to cater to the most extreme points of view. (Consider its positions on DACA and on climate change to name two.)
Sessions' comments suggest he is loath to do anything that appears to condone marijuana. Even if he doesn't declare open war on marijuana in California, his anti-marijuana position may stymie state and local efforts to license and regulate the industry.
For instance, pot shops typically can't open bank accounts or accept credit cards because financial services companies fear being penalized by federal regulators for handling money from drug sales. Given Sessions' stand, that's hardly an unreasonable fear. Come Jan. 1, California will be awash in cash, inviting crime and making it harder to regulate sales and collect taxes.
That's hardly a "rational policy." California is doing the hard work to bring marijuana businesses out of the shadows and into a regulated, controlled marketplace. The federal government should not make it even more difficult for states to fulfill the will of the voters.