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A demonstrator marches at the annual NYC Cannabis Parade & Rally in support of the legalization of marijuana for recreational and medical use, on May 1 in New York City. (Angela Weiss/AFP/Getty Images)

In the Weeds: A Cannabis Policy Update

By Michael Hartman | July 8, 2021 | State Legislatures News | Print

In 2011, not a single state had legalized cannabis for recreational adult use. Fast forward 10 years, and 18 states have done so, either by citizen initiative or through the legislature. Other states introduced but did not pass cannabis legislation this year: Delaware, Iowa, Kentucky, Louisiana, Maryland, Minnesota, Missouri, Nebraska, North Carolina, North Dakota, Pennsylvania, Rhode Island, Texas, Wisconsin and Wyoming.

In late June, Connecticut became the latest state to legalize the recreational use of cannabis. Some aspects of SB 1201 do not take effect immediately, but those 21 and older will be able to recreationally use cannabis starting July 1. “The road to this moment has been long and complicated,” House Majority Leader Jason Rojas (D) said before the final vote. The House passed the measure 76-62, but the Senate vote was tighter at 19-17. The votes in the Senate were not along party lines: Six Democrats voted with 11 Republicans in opposition.

Many Republicans opposed to the bill argued legalization was not good for public health. “All this bill does is legitimize and validate the use of an addictive drug,” Senator Heather Somers (R) said. “The word ‘legal’ translates to many as ‘safe’ ... but today’s marijuana is anything but safe.”

Alongside legalizing cannabis recreationally, Connecticut’s new provisions prohibit cannabis use from being the grounds for revoking parole or probation in certain circumstances; allow for individuals to petition to remove their cannabis records; and allow for automatic record clearing for certain cannabis offenses between 2000 and 2015.

Three other states—Virginia, New York and New Mexico—legalized the recreational use of cannabis in 2021. In Virginia, the Legislature passed Democratic Governor Ralph Northam’s amendments to speed up the implementation window for HB 2312. In New York, it is expected to take up to 18 months for full implementation, but New Yorkers are now allowed to possess small amounts of cannabis and smoke it anywhere smoking cigarettes is permitted. New Mexico enacted a comprehensive law legalizing adult use and providing for a regulated market, while also stipulating that adults over age 21 are allowed to grow six plants per person, or up to 12 in a household with more than one adult.

States That Have Legalized Cannabis for Recreational Adult Use

 

Fierce Litigation in South Dakota

In the 2020 election, South Dakota residents passed Constitutional Amendment A with 54% of the vote. Soon after the amendment passed, it was challenged in court by Pennington County Sheriff Kevin Thom and South Dakota Highway Patrol Superintendent Rick Miller on behalf of Governor Kristi Noem (R). The governor’s office was directing the plaintiffs challenging the amendment while simultaneously being responsible for defending it. Two interveners, South Dakotans for Better Marijuana Laws and New Approach South Dakota, stepped in to defend the ballot measure. On Feb. 8, 2021, Circuit Judge Christina Klinger declared the measure unconstitutional. The issue is currently on appeal in the state Supreme Court. The court could strike down the law entirely; dismiss the governor’s challenge; or strike specific sections of the amendment that it finds unconstitutional, while keeping other parts of the law intact.

Colorado Studies ‘Volunteer’ Cannabis

Colorado, which legalized cannabis in 2012, is looking to study a phenomenon affecting licensed outdoor commercial hemp and cannabis growers. Cannabis plants seem to be sprouting up without direct human control or supervision. In its legislation, HB 1301, Colorado referred to these as “volunteer cannabis plants.” The bill defines this natural cross-pollination of outdoor cannabis plants as the “transfer of pollen from one plant to the flower of another plant.” Because hemp and cannabis are the same species, they can cross-pollinate, ruining the crops for hemp farmers and cannabis growers alike. For marijuana growers, the hemp pollen can lessen the potency of their crops or create new, unwanted strains. For hemp farmers, cross-pollination with high-THC marijuana can raise the THC levels, making their crops technically illegal and unmarketable.

The bill requires the formation of a working group to study the issue and recommend options for minimizing cross-pollination. The working group has a deadline of Nov. 1, 2022, to submit its findings.

In addition to a few other changes for growers, the cross-pollination bill also creates a second work group tasked with reporting by June 2022 on the ways existing rules and tax laws could be amended to better position businesses in the state to be competitive if cannabis is legalized under federal law.

California Creates $100M Grant Program

California, which legalized cannabis in 2016, is considering legislation to work out the kinks in its regulated market. Recently, the state made headlines for a budget bill, AB 128, that allocated $100 million to a grant program intended to help more people obtain commercial cannabis growers licenses. Research from September 2020 suggests California still faces a large black market problem, with estimated unlicensed retailers outnumbering those with licenses. Of those licensed, about 82% still held provisional documents as of April, according to the governor’s office. Those businesses currently face a Jan. 1 deadline to comply with environmental regulations.

The grant program will fund local jurisdictions with commercial cannabis licensees needing the greatest assistance in transitioning from provisional to annual licenses. The budget specifies which jurisdictions can receive portions of the grant money and the maximum amount allowed. The jurisdictions with the largest allocations include Los Angeles ($22.3 million), Humboldt ($18.6 million) and Mendocino ($18.1 million) counties. The selection of jurisdiction was based on the number of provisional licensees with greater California Environmental Quality Act compliance requirements.

What States Are Next?

What’s the outlook for cannabis legislation? Arkansas, Mississippi, Nebraska and North Dakota may have recreational cannabis on their ballots in November 2022 through the citizen initiative process.

Michael Hartman is a research analyst in NCSL’s Criminal Justice Program.

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