Legalization in the Evergreen State has led to parallel marijuana industries. Is there room for both?
On July 24, nearly nine months after Washington State passed Initiative 502, which legalized the recreational use of marijuana by adults, the Drug Enforcement Administration raided four medical marijuana “access points.” The first major federal pot busts since voters passed the groundbreaking law in November sent an immediate chill through the marijuana-law reform community, as speculation arose that the Obama administration was sending an all-too-familiar message to the states.
But upon closer inspection, it appeared that more complicated forces might be at play. The targets were accused of operating outside not just federal law, but state law as well—for example, allegedly by hiding huge cash profits from the state and selling large amounts of marijuana to people (likely without prescriptions), including undercover DEA agents.
The raids would provide a window into the evolving marijuana-law landscape in Washington, in particular the tensions between a largely unregulated medical marijuana industry and a relatively strict new set of parameters guiding recreational use. I-502 added significant rules and restrictions to marijuana cultivation, distribution and possession that its architects hoped would reduce local—and federal—concerns about legalization. This included putting the Washington State Liquor Control Board in charge of regulating the recreational market. Meanwhile, there is no regulatory agency to enforce the few rules on the books when it comes to medical marijuana, which has been legal since 1998.
I-502 will take effect in January; by next summer, more than 300 licensed marijuana stores will open their doors throughout the state to adult consumers legally allowed to possess up to an ounce of pot. This will include twenty-one stores in Seattle. Although the number of medical dispensaries will still dwarf recreational shops—Seattle alone has 200—providers have reason to worry they could find themselves under siege. The Liquor Control Board is poised to tell state legislators that they must crack down on Washington’s largely unregulated medical pot industry. Under renewed scrutiny by voters and federal prosecutors, medical marijuana providers in the Evergreen State will either have to clean up or get cleaned out.
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“There’s two ways of being,” says john Davis, CEO of the Northwest Patient Resource Center (NWPRC). “There’s being completely invisible or being completely visible.”
Davis chooses the latter. He pays his taxes scrupulously and operates a legitimate, law-abiding business. As he gave me a tour of his Seattle medical marijuana shop in September, he made it clear that it had been designed with professionalism and neighborliness in mind. The entrance is clean and sterile, and unlike other medical “access points,” it has an unlocked front door inviting anyone into the lobby, where there is a public bathroom.
Neither the name nor the sign indicate that marijuana is sold here, and there are none of the decorative statements typically associated with stoner culture—no tapestries on the walls or framed Bob Marley photographs. Smoking out back or in the parking lot will get you banned from the shop.
Davis sells dozens upon dozens of marijuana strains and products, from tinctures and hash oil vaporizers to topicals and sodas. They’re on display behind a glass counter, hidden from the windows by a privacy wall. He says he caters not to young stoners in pot-leaf T-shirts, but to a demographic that is “underserved”: women in their 50s or older. “I have a good number of older ladies that have got some pain issues—especially that have developed an unhealthy relationship with opiates—and they have discovered that this is a good way to lessen that, or to get off of them completely,” he says. Davis smiles as he pulls out a tiny gold cylinder. “This is popular with my LOLs—my ‘little old ladies’—because this is an oral suspension. Gold… looks like perfume. Just takes a couple squirts. You can do it in the movie theater—nobody gives you a second look.”
This particular concentrated hash oil sells for $40. The 3.5-milliliter vial contains 2.5 milliliters of THC, the psychoactive ingredient in marijuana.
On the cutting edge of medical marijuana is a variety of high-potency products made by extracting cannabis’s essential oils—not just THC, but also CBD, a chemical compound that has shown a variety of medical benefits. Advocates say that CBD is effective in calming seizure disorders, controlling inflammation and—as early research suggests—potentially reducing tumor growth. The effectiveness of CBD in treating the life-threatening seizures of Charlotte Figi, a 7-year-old with Dravet syndrome, was among the considerations that convinced CNN medical correspondent Dr. Sanjay Gupta to reverse his position on medical marijuana.
But stocking such sophisticated products does not make Davis’s operation exactly legal. He is one of hundreds of “safe-access point” owners operating under legal loopholes in Washington. The state’s medical marijuana law technically never legalized dispensaries, but it did allow “collective gardens” that permit patients to become providers, with the freedom to grow up to forty-five plants and possess up to seventy-two ounces of marijuana at a time.
The law states that someone 18 or older can be “the designated provider to only one patient at a time”—language aimed at creating a smaller provider-to-patient ratio. But Alison Holcomb, the criminal-justice project director for the ACLU of Washington State and an architect of I-502, explains that “pioneers of the entrepreneurial spirit” interpreted this to mean one transaction at a time. Multiple “collective gardens” sprang up right next to each other and began to look a lot like dispensaries. As the focus in Washington shifts to tightening medical marijuana restrictions, these gardens—and dispensaries—may be banned altogether.
“Presumably,” Holcomb says, “a 502 store will be where you can go in and have a whole range of various products you can buy. Then the question becomes: Is there a reason why you should have a parallel industry? Why would you have a licensed, regulated medical marijuana industry side by side with a 502 industry open to anybody 21 and over?”
The Washington-based Coalition for Cannabis Standards and Ethics (CCSE) is the body currently keeping the medical marijuana industry compliant, using “standards that are higher than is required by law,” according to Davis, its executive director. Though legally toothless, the group serves to fill the gap in state regulation by organizing inspections, providing certification, and encouraging distributors to follow guidelines so as to boost confidence in the industry.
Davis says the CCSE was formed in December 2011—mainly in response to the misgivings of city officials in Seattle, who expressed concern over the lack of regulation, “but did not have the means to carry it out.”
“Really,” he says, “the city asked us to do so.” Although medical marijuana had been legal for well over a decade, Davis says that as recently as 2008, he was one of the few medical marijuana shops open in Seattle. Then, he adds, “it just started taking off.”
Another marijuana entrepreneur—Luis Garcia, manager of Northwest Botanical Analysis, which tested and ranked the pot entries in the 2013 High Times US Cannabis Cup in Seattle—told me that the state has asked his company for advice on inspections. So long as marijuana connoisseurs lead the way in setting standards, it seems, at least some government agencies have more faith in their legitimacy.
“My elected officials know me, they call me, they ask me questions,” Davis says proudly. When community concerns have “risen to a police level,” he adds, local administrators have gone to him.
Davis maintains that what’s happening at the community level ultimately has the potential to attract federal intervention. He cites the raids in July. “They were raided for cause,” Davis says, pulling out a binder on the busts. “It was not random.”
“One of my jobs in Washington State is, if there’s a governmental action, to understand it,” he went on, paging through the warrants and other documents. The businesses in question were federally indicted in 2011, but no charges were ever filed. Davis suspects US Attorneys had given the owners a choice: disappear or be shut down. When they showed defiance in the face of this ultimatum, “the DEA came down on them like a ton of bricks.”
I-502 was designed to protect against such raids by addressing what the federal government has expressed as its biggest concerns, such as out-of state diversion and youth access. The ACLU’s Holcomb credits the tightness of these regulations with the initiative’s success. Indeed, two previous legalization initiatives by the group Sensible Washington failed to make the ballot in 2010 and 2011, despite their safety- and community-oriented rhetoric. In 2012, New Approach Washington, the group behind I-502, launched a campaign with similar language, but calling for more regulatory oversight.
“502 was pitched as being the most conservative marijuana legalization you can imagine, but it is still marijuana legalization,” Holcomb says, pointing out some of its most important—and controversial—aspects. The law banned public consumption and set a low bar for police to charge people with driving under the influence of drugs. The medical marijuana industry and some activists opposed such measures as heavy-handed, but they were in the minority.
Others opposed the way I-502 aimed to limit profits to keep marijuana businesses from morphing into something resembling the alcohol or tobacco industry. Under the law, distributors cannot own more than three 502 stores, and monopolies are discouraged by setting strict licensing requirements. Growers and processors may not be licensed in retail, for example, and licensed growers can utilize no more than 30,000 square feet. A cap on statewide production—80 metric tons per year—worried some activists, who expressed concern that it would perpetuate the black market. But most seem to agree that without such strict regulations, recreational marijuana legalization may end up looking like the medical model now under siege.
In January, the state’s working group on marijuana policy will submit formal regulatory recommendations to the next legislature. It will advise state officials to pass legislation mandating that medical marijuana providers abide by the same strict standards imposed by I-502 to guide recreational use. But in the absence of even so much as a licensing process for medical providers, meeting such standards could prove impossible. The group also recommends a legislative ban on growing at home for both individual patients and collective gardens. Should legislators take that advice, a patient’s marijuana supply will be capped at three ounces—a drastic reduction from the current twenty-four.
For Davis, the decision will be a matter of survival: “We are going to have to get something through the legislature that provides some sort of regulation and some sort of licensing system.”
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In the meantime, the enforcement landscape in Seattle has changed in important and unexpected ways. This summer at the Seattle Hempfest, cops passed out bags of Doritos with marijuana “Dos” and “Don’ts,” including “Don’t use pot in public” and “Do listen to Dark Side of the Moon at a reasonable volume.”
Seattle Police Sgt. Sean Whitcomb told me that legalization will “improve police-community relations…. It’s a barrier that’s being broken down,” he adds, “and that is kind of cool.”
The Doritos bags were part of a new public relations push by the Seattle police to cultivate a less adversarial image. The department even hired Jonah Spangenthal-Lee, a former blogger at the local alternative weekly The Stranger, who came up with a guide to getting stoned, “Marijwhatnow,” that quickly went viral. “We are a public service agency. We serve our city, and the law changed,” Whitcomb says. “So our position has always been: we want a clearly written law that will not put our officers in a difficult position…. And with 502, it looks like we have that.”
But no matter how liberal Seattle’s pot laws are, federal law remains in place. Students under the legal age can still lose federal tuition aid if they are arrested for pot in Washington; businesses can still drug-test their employees; and US Attorneys can order raids under the Controlled Substances Act.
Davis, for one, laughs off the notion that Barack Obama is invested in ordering busts. “It’s the US Attorneys themselves!” he says. He and Holcomb both say that one reason there have been so many more pot busts under Obama than George W. Bush is that there are simply “way more” dispensaries.
He is more concerned with getting a regulatory scheme in place that ensures his survival. “No industry exists without some sort of regulation,” he says, “some sort of compliance with the law.”