DC Legalizes — Now to Build an Industry

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On Tuesday, November 4, 2014, Washington, D.C., joined Alaska and Oregon to legalize recreational marijuana use. It was a perfect trifecta for recreational reform efforts. Only Florida, where voters rejected a constitutional amendment permitting medical use, was lost on the fray. Celebrations were certainly in order as the results became clear because hard work started the next morning.

Approval was widely expected in the District of Columbia, and with all precincts reporting, the margin of approval for Initiative 71 appears to have been about 65 percent. The measure permits individuals over the age of 21 to possess up to two ounces of marijuana for personal use and grow up to six cannabis plants in their home.

It also allows people to transfer up to one ounce of marijuana to another person, but not sell it, in a system dubbed “grow and give.”  By themselves, those provisions are largely symbolic,  since D.C. decriminalized personal possession in March of this year.

Voter initiatives in D.C. cannot mandate the expenditure of city funds, which setting up a system of regulated sales would require. That task has been left to the city council, and is already underway.

The giant hurdle is Congress. Under the Home Rule Act, Congress has a period of 30 days within which to disapprove local legislation. As you may have noticed, last night was also a very good night for Republicans, including Rep. Andy HarrisR-Md., who has vowed to fight legalization in D.C.

It is hard to tell, at this point, whether the results of the midterms did more to strengthen the hand of legalization advocates or weaken it, as far as the District is concerned. Marijuana, of course, remains illegal under federal law and the weight of the legal inconsistency is felt nowhere more acutely than in the nation’s capital.

D.C. city council person David Grosso, who has drafted regulations to implement retail sales, has advocated delaying the effect of “grow and give” until regulations can be adopted, which might be another year. Activists, who worked to ensure passage of Initiative 71, are aghast. It seems like a move to snatch defeat from the jaws of victory.

On the other hand, in terms of individual behavior, it is hard to see how delay would make a difference.  It may make a strategic difference in terms of resistance from Congress, however.

The distinction between legal “giving” and illegal “selling” is vague, at best.  Although the terms of the initiative would not permit individuals to trade money for cannabis, what about trading goods and services?  Is that “selling”?  Consider the effect on Congressional opponents if D.C. were suddenly awash in illegal sales arrests. Why would reform advocates want to risk this? How would this help build an industry?

“Hurry up and wait” is hardly a satisfying mantra for the days immediately following election day. As the experience of legalization in Colorado and Washington suggests, however, cautious incrementalism may be a way to open up the marijuana market in a way that avoids enforcement action and draws investment. Much more will be clear when Congress returns to Washington.

Anne Wallace is a New York lawyer who writes extensively on legal and business issues. She also teaches law and business writing at the college and professional level. Anne graduated from Fordham Law School and Wellesley College.

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