But the burgeoning cannabis industry has relied on an Obama Administration policy of tolerating state laws that regulate a drug that’s still federally illegal. With a new administration talking over in Washington, D.C., what does this mean for legal marijuana?
It’s been two years since voters in Oregon approved a measure to allow adults to grow, buy, possess and consume marijuana for recreational use. And while buying cannabis in Oregon isn’t quite as simple as walking into your corner 7-Eleven and picking up a six pack, it’s still pretty easy.
I recently walked into Breeze Botanicals, in Gold Hill, Oregon.
The owner, Brie Malarkey, checked me in, inspected my ID then led me into the dispensary’s locked showroom.
“Welcome to the other side of the wall,” Malarkey says.
In this locked showroom, Malarkey goes about displaying an impressive array of marijuana in glass jars. After quizzing her about the effects of various strains, I make my choice: Watermelon Kush.
I pay, put my purchase in the legally-required child-proof container and I’m out the door.
This now-legal transaction happens tens of thousands of times a day in Oregon, Washington, Colorado and Alaska. What’s allowed this to happen, since marijuana remains illegal under federal law, is a 2013 policy memo by then-Deputy Attorney General James Cole. The so-called Cole memo says that if states make effective efforts to keep cannabis away from kids, prevent driving while high and address other concerns, the feds will look the other way. Will a Trump Administration continue that policy?At a rally in Nevada a year ago, candidate Trump gave this answer to that question: “I think medical should happen, don’t we agree? I mean, I think so. And then I really think you should leave it up to the states, it should be a state situation.”
But Trump has expressed less supportive opinions on other occasions and his nominee for attorney general –Sen. Jeff Sessions, R-Ala.– has very firm ideas of his own.
“This drug is dangerous, you cannot play with it, it’s not funny, it’s not something to laugh about,” Sessions says at a Senate hearing last April. “And trying to send that message with clarity that good people don’t smoke marijuana.”
John Hudak, a senior fellow at the Brookings Institute in Washington, D.C., says it’s hard to say where the Trump Administration will come down on this issue.
“There is reason for us to believe that either outcome —either a pro-states’ rights outcome or a pro-prohibition outcome— could happen.”
Hudak points out that the legal foundation on which the marijuana industry rests is pretty precarious.
“The Cole memos can be rescinded by the stroke of the pen of the Attorney General,” he says.
But Troy Dayton isn’t too worried. He’s the CEO of the Arcview Group, a San Francisco-based investment and market research firm that focuses on the cannabis industry. Dayton acknowledges that Sessions appointment as AG “… would be devastating to the cannabis industry” if Trump gives him scope to set his own policy.
But Dayton remains bullish on the industry’s future. He points to the growing success of legalization measures and to polls showing more than 60 percent of Americans support legal marijuana.
“There is more political cost to going against the grain here, than going with the grain.”
And, Dayton says, he thinks Trump is unlikely to spend his political capital trying to put the marijuana genie back in the bottle. Attorney Henry Wykowski agrees.
“The more people that know how to grow it and appreciate the benefits of using it, the harder and harder it’s going to be to stop,” he says.Wykowski is a prominent San Francisco lawyer who’s represented many cannabis businesses during years of legal battles with the feds. He notes that since 2014, Congress has passed a budget rider that bars the Justice Department from using federal funds to interfere with state medical marijuana laws. And in 2015, a federal court slapped down a Justice Department attempt to circumvent the measure. Wykowski thinks it’s likely Congress will extend that protection to states with recreational use laws, as well.
“Why would anybody want to deprive the states of the ability to regulate and tax cannabis and open up that market back to the illegal cartels?,” he asks.
About three-in-five Americans now live in a state with some form of legal cannabis. Analysts say the industry is worth nearly $7 billion in 2016. And, as the new states – including California – come on line, that value is projected to approach $22 billion by 2020.
At Breeze Botanicals, the herb shop in Oregon, owner Brie Malarkey recognizes the uncertainty that hangs over her business. But, she says, she creates jobs, she pays taxes and works hard to do right by her employees and her clients. And she remains optimistic about the future.
“I keep saying to myself, if you know what you’re doing is right and you’re leading by example and you’re trying to be a good citizen, you just keep fighting for what you know is right,” she says.