It’s always fun comparing state-by-state cannabis laws, as it highlights two things: regional culture and the interpretation of federal expectations therein. As you can imagine, the distillation of two legitimate powers — social power from culture, actual power per governmental adherence — in regards to cannabis leads us into a legal territory that is akin to walking on eggshells; an uneven legal landscape foreshadowing anxiety, scrutiny, and oversight (and revenue).
Alternatively: excitement, adventure, and liberty (and revenue).
As more states try to map the murky waters of legal cannabis, the Federal Government thus far has taken a hands-off approach, allowing states to interpret the voter-backed measures under a few inflexible rules dictated by the Department of Justice.
When looking over the topic of Colorado marijuana laws compared to new Maine laws, the two have nearly identical ideas of what the DOJ expects: minimize impact on youth, in communities and availability; prevent trafficking interstate or allowing criminal enterprise to navigate the legal loopholes or be involved with related businesses; monitor health and social impacts; provide analysis and the prevention of environmental damage or destruction associated with cultivation of large volumes of cannabis. And through these legal bottlenecks (not that a calculated approach is a bad thing), Colorado marijuana laws represent a different type of cannabis consuming populace than in Maine.
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CO v ME: The Administration of Licensing
Colorado chose to create a new licensing authority, the Marijuana Enforcement Division. The Marijuana Enforcement Division acts under the authority of the Colorado Department of Revenue (where liquor, tobacco, and gaming all have their respective state agencies) and is able to justly levy taxes, review applications, issue licenses, dictate regulations, perform criminal investigations and review dispensaries compliance as necessary. License application fees may not exceed $5000 dollars until a time when MED determines the administrative costs are not being covered per Amendment 64 tax revenues.
Authorities in charge of processing licensing in Colorado, under the voter-backed amendment, had nearly eight months from the time the measure was signed into law to create the regulatory framework that would dictate the structure of licensing fees, revocation and denial of licensing, and the consequences of breaking any of the regulations set forth by MED.
New Maine laws, when compared to Colorado marijuana laws, have chosen the licensing function to be designed, oversaw, and managed by the Maine Department of Agriculture, Conservation, and Forestry. They have been given nine months to create and implement regulations and a licensing fee structure, though both supporters and opposition of Question 1 seem to believe this an unrealistic timeline.
Given that the Department of Agriculture would have to collect all the taxes destined for Maine Revenue Services, would have to find around $5 million for start-up costs, and would be subject to setting fees within the ranges provided in the text of the ballot measure (pg. 19-20), as well as create full-time positions to scale of enforcement efforts, the single governmental body rightfully feels like an encumbered island with such an undertaking.
CO v ME: The Creation of Regulation
Regulation is the legal veil warding off federal interference. Made to appease the concerns of the Department of Justice I mentioned earlier, many of the states that have implemented recreational markets enact regulation that exceed DOJ concerns in scrupulous fashion. The problem: lack of research has often left regulation struggling to keep up with the pace of the demand.
An example: in 2015, Colorado Gov. John Hickenlooper signed executive orders allowing cultivators to be investigated on the grounds of pesticide contamination — where an approved pesticide is used at dangerous levels. After the industry had already rolled out with tour-de-force cultural momentum, it came to light that the state was not up to the EPA standards for products to be consumed in terms of pesticide use levels. Given the plant is federally illegal, it just slipped the legal purview.
Now, cultivators have to disclose the pesticides used, if any, and in what volume they can be detected — in other words: safety, after the fact.
Colorado Gov. John Hickenlooper has used executive order twice thus far in regard to the recreational marketplace.
In order to organize the regulatory structure that has become the bones of the state recreational, adult use cannabis marketplace Colorado currently functions on.
Whileregulatory changes are constantly evolving, Gov. Hickenlooper’s actions in June 2013 expanded the role of several governmental agencies in the regulatory oversight of cannabis sales, one month before the state was set to have regulations in place. Here is who does what in Colorado’s cannabis market:
- Department of Agriculture oversees the creation and implementation of rules regarding the usage of banned substances, I.E – pesticides and other health risks
- The Department of Public Health and Environment will develop rules regarding good laboratory practices
In addition to MED, the Department of Agriculture, and the Department of Public Health and Environment, councils may be assembled and summoned by these state agencies and the Office of the Governor to convene regarding regulation and education surrounding cannabis.
New Maine Laws compared to Colorado marijuana laws seem a lot less organized, though this could be because the bulk of regulation has yet to be written. The Department of Agriculture, Conservation, and Forestry is fundamentally lacking the appropriate tools and infrastructure necessary to administer a licensing program, and they are equally bothered to come up with a regulatory framework in nine months for the licensing program to hang it’s hat, says Walt Whitcomb, commissioner of agriculture in Maine.In addition, they are charged with creating provisions on cultivation, manufacturing, retail sales, and testing of marijuana products.
With a plate this full, the voter-backed measure has drawn fire from both Maine Governor Paul LePage, an opponent of the amendment, and supporters of legalization for not placing the regulatory oversight with the Maine Bureau of Alcoholic Beverages and Lottery Operation (BABLO), housed alongside the Maine Revenue Service, where the sales tax revenues are collected and debited to the State books.
CO v ME: The Use of Tax Revenues
Maine is simplistic when it comes to where the taxes are to be spent (outside of administrative costs). An additional 10% marijuana sales tax, plus the 5.5% state sales tax and any other local taxes is to be levied on the sale of marijuana. 98% of the revenues collected will be deposited into the Maine General Fund (though don’t expect to see marijuana revenue until 2018), with 2% going to state-wide local governments for administration costs..
Colorado taxes are to be collected at two points: transfer or sales from cultivator to distributor or retailer at 15% and when a retailer sales to a customer (add 10% special sales tax). The 10% sales tax primarily funds the administration of the Marijuana Enforcement Division, whereas the 15% excise tax has the first $40 million raised annually is earmarked for the a State operated School Grant system — BEST — which is used by public schools for construction and necessary improvements.
CO v ME: Possession, Public Use, and Home Grows
As a prerequisite, the state must ensure those under the age of 21 are as removed from marijuana as they can be; however, if compared, Colorado marijuana laws and new Maine laws do carry provisions allowing limited personal cultivation. In both cases, the plants must reside in a secure and locked location, with a limit of six plants per adult, free from prying eyes and youthful hands. The ambiguity surrounding exactly what “public” and “private” mean remain more of a curse in Colorado than in Maine.
In Colorado, the amendment that allows adult cannabis use negates to specify whether pot clubs can exist, yet the MED prohibits sales and consumption under the same license. In Maine, the marijuana laws arriving in the state Constitution specifically allow establishments to both provide marijuana and a place to consume it. While Denver Ordinance 300 would allow limited social use in the Mile High City, the easternmost State in the US aids and abets social use under the protection of the law, where, insofar, Colorado pot clubs just fly under the radar.
In Maine, any person age 21 and older may possess and/ or transfer up to 2.5oz of cannabis (limits on concentrates, unknown/ not defined) without remuneration. In Colorado, only those with a medical license may purchase over an ounce. While you can hop from dispensary to dispensary, a possession charge in a place where it is legal to carry (in my opinion) the equivalent of a keg of marijuana with you is embarrassing AND unnecessary. In both cases, the fiscal impact on the legal system not having to prosecute for many adult marijuana-related offenses set to offset some of the initial cost impact on the state. The Maine Office of Fiscal Policy and Review estimates the impact to be “significant” in regards to legal savings.
The Northeastern Bet
Colorado marijuana laws compared to new Maine laws have two stark differences:
- Maine’s 2.5oz possession limit vs the 1oz (28 grams) limited by Colorado law
- The direct addressing of cannabis social clubs
Ask yourself: what does this say about the voters in Maine that voted in recreational marijuana? Are they culturally a different community than those in Colorado, or just progressing the wheel of social acceptance of marijuana? Colorado has a population 400% larger than Maine, is that a factor? What about history? What does New England’s tumultuous cultural history exude that isn’t present in Colorado? Or vis-versa. Is timing to be considered? Afterall, Colorado was the first state to have a legal market.
Maybe people just want to get high, or maybe it’s just an exercise in democratic freedom, but either way, Colorado and Maine are two benign spots on the societal cancer of marijuana prohibition, and changes in both state approaches towards marijuana regulation is inevitable. It is possible that some day, state laws regarding marijuana will be more uniform, until then, canna-tourism can thrive under local quirks and regulation will be cumbersome enough for the Department of Justice to (hopefully) stay out of the way.