In June 2017, Vermont was in the news for being one of the first states to possibly legalize recreational marijuana via action with the legislature. All other states that have legalized recreational use have done so by ballot initiative. Although the bill was vetoed by the governor after it was passed by the state house and state senate, it was sent back with recommendations for changes. Ultimately, the Vermont legislature did legalize recreational possession and use of cannabis, although as of this month, a regulatory structure for commercial sales is not yet in place.
With Vermont legalizing via legislation and the trend of cannabis across the country, it is becoming more likely that future legalization will be done by state legislatures. If legalization is likely to occur in a state, state legislators would rather be in control of the process. This raises the question of which process of legalization is more favorable for dispensaries, cultivators, and any others actors in the cannabis industry.
How the Market is Held Back
Ever since some form of legalization started in the United States, there has always been a cloud of uncertainty that has chilled the market from reaching its full potential, mostly due to the current illegality of cannabis at the federal level. Such effects include the prohibition of trade across state lines, the inability of banking financial assets and the possibility that a business can lose all of its property in a raid by the Drug Enforcement Agency.
However, even in states with legalization, state and local regulations are still debated, which slow down how fast markets grow, including caps on license issuance in more cautious regulatory schemes.
What the Industry Needs During the Legalization Process
Market participants typically desire two things: market stability and the least onerous regulations. For business planning purposes, cannabis merchants want to know the laws that are currently in place are well established and any kind of major change happens over a longer period of time with plenty of opportunity to comment. With ballot initiatives, it usually takes more time to establish what exactly the law is, since most states allow legislative tampering of initiatives in some form once they pass after an election.
For example, in Massachusetts, even though recreational use was legalized via ballot initiative in 2016, the legislature has voted to delay the deadlines of the ballot initiative for regulation implementation and license issuance. Even in mid-June 2017, there was still debate on who will control the governing agency, the state treasurer or an independent commission. As of November 2018, the Massachusetts legislature has authorized the formation of the Cannabis Control Commission, a five-member independent agency.
Meanwhile, Vermont has been in the process of working back and forth between committees, chambers, and the governor’s office so when legalization does occur from the legislature, all major intragovernmental disputes should be settled and businesses will be confident in investing and beginning commercial activity.
Second, businesses desire the least burdensome regulations to allow the market to flow as organically as possible — within reason. When legalization occurs via ballot initiative in a state where the legislature or governor did not favor such a law, it is more likely that the regulations implemented by agencies will be more onerous to err on the side of safety and account for the fears that state representatives had in the first place.
After a passed ballot initiative, state legislators will almost always have to create regulations that reflect the will of the people, but the high discretion they have can make all the difference for a well-functioning market — or lack thereof.
Legislation is a Good Market Foundation
Each state is unique with its political environment, so there is no one universal rule. Overall, it seems that legalization by the legislature with debate is more favorable for the market since regulations are written by agencies, not a ballot campaign — notwithstanding legislative alteration. When the government can allocate control without dispute, the market will be more stable and more likely to grow.
However, the mechanism of the ballot initiative and its profound influence on marijuana legalization should not be dismissed. Without this political process, it is very unlikely that there would be 33 states with some type of legal cannabis status. Ballot initiatives were the needed catalyst to show the people’s desire for legalization to the state legislatures and allow the cannabis market to become legitimate.
Originally published 6/16/2017. Updated 11/9/18.