How We Got Here: A 10-Year Look Back at Cannabis Reform

Features - Business

This special three-part series reflects on legislative, financial and regulatory developments that have altered state-legal cannabis programs during the past decade.

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June 15, 2020

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In 2012, Mark Cardenas participated in a debate for a seat in the Arizona House of Representatives. He thought he hurt his chances of getting elected when he voiced his support for adult-use cannabis legalization in the state. (Medical cannabis has been legal there since 2010.)

Cardenas recalls to Cannabis Business Times his debate opponents expressing apparent indecision when responding to the moderator’s question about cannabis, claiming they needed to read some studies before making a conclusive decision.

While Cardenas and the other candidates brought sections of people to cheer for their responses to all their other questions, Gardenas says, “I just said, ‘Yeah, I am in full support of legalization,’ and my section didn’t cheer. So, I look up, and I’m like, ‘Aw, man, I messed up. What did I just do?’”

Still, Cardenas obtained the seat and served in the house from 2012 to 2019. And although cannabis wasn’t a top priority that he expressed to voters, he doubled down on his position, introducing and working on multiple legalization and decriminalization bills over the years.

The broader Arizona legislature’s efforts not to pass a legalization bill could be circumvented this election year by voters through the Smart and Safe Arizona ballot initiative. Likely to put adult-use legalization on the November ballot, it has more than $2 million in financial and in-kind backing from the cannabis industry, as of press time. And Proposition 205, the last attempt to legalize adult-use cannabis in 2016, though unsuccessful, ended in a close 51% “No” vote.

In a sense, the situation in Arizona reflects what’s been happening in the U.S. more broadly during recent years. As acceptance of and support for medical and adult-use cannabis has grown, other swaths of the population have pushed for medical and adult-use programs, too. In addition, the country’s existing medical and adult-use state markets provide a glimpse into what future programs could look like for both segments.

“As [people] realize that [in] states that have legalized, there was no mushroom cloud and they didn’t go out in a huge explosion there, that things ran as normal, I think they started to think, ‘Oh, okay, well, Colorado didn’t implode, so that takes away my argument from there,’” Cardenas says.

Regulation Rethink

The U.S.’s state cannabis programs don’t remain stagnant, either, but are evolving to address numerous goals, such as consumer health and safety, sustainability and economic development.

Colorado residents voted to legalize adult use in 2012 through Amendment 64, and businesses began selling product in 2014. Jim Burack, executive director of Colorado’s Marijuana Enforcement Division (MED), explains that regulators are regularly working with the state legislature, cannabis businesses and other stakeholders to improve the state program.

For example, former Gov. John Hickenlooper issued an executive order in 2015 deeming off-label pesticides a threat to public safety and directing state agencies to destroy contaminated cannabis. Resulting actions included a frequently updated list published by the Colorado Department of Agriculture (CDA) of pesticides the CDA has approved for use on cannabis.

“With our partners at the Colorado Department of Agriculture and working with our licensees and industry, I think we’ve come up with more sustainable practices that are really conscious of our joint responsibility to ensure that the industry’s really paying attention to consumer safety,” Burack says.

Regulations surrounding edibles in Colorado have also changed quite a bit, says Shannon Gray, MED communications specialist. “Edible products now have serving sizes, they’re stamped with the universal symbol [a diamond containing “!THC”] and their maximum potency for THC in those products—and that’s to prevent over-ingestion and accidental ingestion,” she says. “That’s a big change from the initial regulations when adult-use was first set up.”

During the 2019 legislative session, upon consulting with the industry, Gray says the Colorado General Assembly added sweeping changes to Colorado’s program, including delivery, public investment and on-site consumption.

Delivery in Colorado was a precursor to several other states’ current model of permitting delivery to ensure social distancing amid the coronavirus pandemic. As of press time, it remains to be seen whether any of these other states permanently adopt delivery.

Medical Evolution

As adult-use consumers and the industry embrace legalization and updated regulations, some individuals and groups are sounding the alarm about the need for more medical access.

In 2002, Steph Sherer founded the nonprofit Americans for Safe Access (ASA), which represents medical patients, researchers and doctors. Sherer, who now serves as ASA’s president, says existing medical markets have improved during the past five years in a few ways. “We’ve really seen states move to improve their laws to increase access—everything from adding pain as a condition to opening up more avenues for doctors to be able to recommend without the state setting the qualifying conditions.”

But other countries where medical cannabis is federally legal are making more progress with patient care, doing things like requiring standardization, increasingly involving doctors, allowing for research and accepting health insurance.

In the U.S., Sherer says many people who could benefit from cannabis aren’t doing so for a whole slew of reasons. She notes that people who don’t have a card in a medical state—or can’t legally access cannabis in states where it isn’t legal—can lose their jobs, homes and families in some cases for using cannabis. Others don’t know medical cannabis is an option; get drug tested for work; can’t afford the product, a doctor’s visit, or multiple visits to the dispensary to purchase product; and so on.

“Even though we have, on one hand, these laws in many of the states, and [recreational use] as well, these programs are still serving only a very small percentage of potential patients,” Sherer says.

Each year, ASA releases its State of the States Report, which scores each state on an A-F scale, measuring criteria such as if it provides access for patients and business owners, patient protection from arrests and other adverse situations, and options for patients to use cannabis as an alternative to opioids. It also scores states’ requirements for staff training, standard operating procedures, pesticide guidance and other rules and regulations outlined for cultivation, dispensary, manufacturing and laboratory facilities.

“We’re finally starting to see some A’s after many years of mostly F’s,” Sherer says. The highest scores in the 2019 report are “A-” for Oregon and Illinois. However, when asked which states provide an ideal model for a medical-only cannabis market, Sherer explained that Oklahoma, which earned an ASA “B” score, created a successful program and opened it quickly.

In its 2019 report, ASA gave Oklahoma perfect scores for existing patient qualifying conditions and the potential to add qualifying conditions. (Oklahoma currently doesn’t have any qualifying conditions—it’s up to doctors whether to prescribe cannabis.) It also granted perfect scores for testing required of cultivators and dispensaries. But requirements for “staff training” at grow, dispensary, manufacturing and laboratory facilities each received only one out of five possible points.

With cannabis businesses deemed “essential” during the COVID-19 pandemic in Oklahoma and most other states (with the exception of adult-use businesses in Massachusetts) dispensaries like Likewise Cannabis (pictured) can continue to build.
Photo courtesy of Corbin Wyatt

A Model Rollout?

Corbin Wyatt, CEO of Oklahoma dispensary chain Likewise Cannabis, says the state’s program started as “a fly by night kind of thing” that didn’t have much structure but allowed businesses to quickly expand and bring in many patients.

The state legislature has since changed the program to include more rules and regulations, like other states, Wyatt says. But a few things still stand out. Oklahoma has approved more than 280,500 patients, 6,300 growers, 1,600 processors and 2,400 dispensaries as of May 1, according to the Oklahoma Medical Marijuana Authority. The numbers of growers and processors have nearly doubled since New Frontier Data said in July 2019 that Oklahoma had the second-highest medical-market saturation. At 3.49%, it was just behind New Mexico’s 3.52% saturation rate.

Getting voters on board with medical legalization doesn’t appear to have taken much hand-holding. Wyatt, who says he is finalizing a vertical integration deal to add cultivation and processing to his business, says he believes Oklahomans passed medical cannabis in 2018 in part because they already had experience using cannabis—it’s legal in Colorado and smugglers also bring it illegally from Mexico through Texas.

“The Oklahoma market has just been, I think, one of the greatest case studies in cannabis legalization that anybody could ever ask for,” Wyatt says. “You’ve got a very red state that nobody assumed would be one of the largest cannabis hubs in the country. Suddenly, we’ve brought in brands from California, Colorado, Oregon and Washington.”

The oil and gas industry fuels Oklahoma’s economy, Wyatt says. But now that the industry is in disarray due to the global pandemic, the entire state is feeling the impact. “Cannabis has provided a new industry with a highly taxable and desired commodity as well as an opportunity for Oklahoma to further diversify our economy,” he says.

Oklahomans passed State Question 788 to legalize medical cannabis with 57% of the vote in 2018. Wyatt thinks adult-use legalization could pass in the state by an even wider margin, perhaps this year.

While nobody knows what the future holds, the past five years have yielded sea changes in the acceptance, and even embrace, of cannabis. Just in the past few months, state officials across the country have deemed cannabis businesses “essential”—further indicating that those businesses can help push the U.S. forward.

Patrick Williams is Senior Editor of Cannabis Business Times and Cannabis Dispensary.