As Washington’s medical marijuana program dwindles down, medical marijuana patients are fighting for the right to grow recreational cannabis, but the state’s cannabis industry is pushing back.
Meagan Holt was unassuming as she approached the podium, but as she spoke, her voice grew more powerful and forceful, full of the intensity of balancing her emotions.
“The mess that has been created in Washington is despicable,” she said. “The options you have presented are not only disasters waiting to happen, but are, again, going to cost more money — to do what? Generate a little more tax revenue? When are you going to see this is not a business, but a plant?” she pleaded to representatives of the Washington State Liquor and Cannabis Board, at an October 2017 public hearing on the issue of personal recreational home growing.
Holt is the mother of 4-year-old Madeline Holt, who has a terminal genetic disorder that involves life-threatening seizures, among many other symptoms. She began giving her daughter cannabis two years ago while she was in hospice. Madeline is still alive today. Patients and patient advocates like the Holts say having the ability to grow personal non-commercial amounts of cannabis at home is a human right, one not currently afforded them under the state’s adult use legalization scheme or diminishing medical program.
“The current medical marijuana system has failed my child, failed to provide safe access to quality medicine, failed to provide arrest protections, failed to uphold Madeline’s right to have her medical information kept private and, worst of all, failed to provide her with full safe access to education,” Holt said.
In 2016, Washington state’s medical access program was almost completely “gutted,” forcing the majority of patients to purchase cannabis from a highly taxed “recreational” retailer and limiting their possession quantities and ability to grow collectively. Patients are not exempt from all recreational taxes, there are no longer medical-only storefronts catering to them and patients are entered into a state database, which they feel violates their rights to privacy. Children legally using medical marijuana may not use it while they attend public schools. The Holts are proponents of a separate bill, H.B. 1060, which would allow their daughter Madeline to attend school and be educated alongside her peers.
Holt and many other local advocates, patients and industry professionals are frustrated that, while the state has warmed up to the revenue-generating cannabis businesses in the state, they have turned what she and many others consider to be a blind eye to the patient community and the civil right arguments used to bring about the legalization of the commercial marijuana industry in the first place.
Washington, along with Colorado, was one of the first states to vote to legalize marijuana in 2012. Unlike Colorado, and all other jurisdictions that have legalized the adult use and possession of marijuana (including the nation’s capital), it is the only state where a law-abiding citizen cannot choose to grow plants for personal use.
Legalization in Washington was sold primarily on the merit of social justice, not profit, so why is it such an uphill battle for Washington patients and citizens to access affordable cannabis or do something as simple as tend a garden? The biggest opposition these advocates are facing is not necessarily from the anti-drug coalitions that opposed legalization in the first place — but from within the industry itself. At the same October meeting where Holt spoke, the Washington CannaBusiness Association (WACA), which is comprised of well-funded businesspeople and lobbyists, emerged as the primary opponents to opening up the law to include personal gardens.
After conducting a study on the feasibility of such a policy, the Washington State Liquor and Cannabis Board presented three options for their recommendations to the state: (1) a strictly regulated system where home growers would need to obtain a state license, pay for and enroll in digital plant tracking used in the commercial system and submit to searches by law enforcement at any time to ensure compliance, or (2) The same as option one, with more local control and the right for municipalities to maintain a ban or (3) the status quo: no home grow.
Going into the 2018 legislative session, advocates are opposing all three of the options laid in front of them and are instead pushing a home grow law at least on par with Oregon of California.
Controlling a Cash Crop
Because federal law prevents major banks from working with the industry, in legal states a handful of state-chartered banks and credit unions that have stepped in to serve the industry. In Washington, there are just three: Salal Credit Union, Numerica Credit Union and Timberland Bank — and their representatives are citing federal prohibition as the reason they oppose home grow in Washington state.
At the October meeting where Holt spoke, representatives from two of those banks, Salal and Numerica, spoke out in opposition to personal cultivation, saying they would stop working with the industry if it is approved.
“We are concerned about Washington’s ability to monitor a substantial increase in the production and the cost to the state and local jurisdictions to enforce new rules. Finally, we are concerned about the perception with Attorney General Jeff Sessions. It would certainly make us rethink our ability to serve the system if the Cole Memo was revoked,” said Russell Rosendal, the CEO of Salal Credit Union.
Rosendal made that statement in October 2017. Attorney General Jeff Sessions revoked the Cole Memo on January 4, but when Rosendal was contacted to follow up on his previous statement in light of more recent developments, he admitted that Salal Credit Union has not stopped working with legal businesses in Washington, despite the change.
He was then asked about state-chartered banks working with the industry in nearby Oregon, which allows personal cultivation. Rosendal said that Salal is actually looking into doing business in Oregon, despite legal home grow, because he says they have the regulatory structure designed around it.
California and Colorado also have banks working with the cannabis industry, despite laws in both states that allow personal cultivation.
Oregon’s law allows personal cultivation of up to four mature plants per household. There is no specific regulation for police or other entities to enter the home for compliance checks, nor does it require licensing, fees or tracking. Enforcement is strictly complaint-based. Oregon counties can ban commercial businesses, but not personal possession and cultivation. Current Washington proposals in front of the legislature now — which Salal Credit Union has said it opposes — would do almost the same thing, but with a total of six plants instead of four.
Rosendal also happens to sit on the board of WACA, the main opponents within the industry to home cultivation efforts. WACA is made up of licensed producers and businesses serving the legal market and is run by one of the state’s most influential business lobbyists, Vicki Christopherson. Not all WACA members oppose home grow, but it is the official position of the organization to oppose it.
WACA declined to participate in a verbal interview, but the firm representing the organization released a statement that said, in part: “With a federal administration that opposes legal marijuana, our members do not wish to loosen our state regulations at a time when we are still working hard to support the current regulatory structure that prioritizes a safe, quality-controlled and regulated marketplace that keeps cannabis out of the hands of minors.”
With even the industry itself pushing against home grow and still using the now-defunct Cole Memo as a reason to uphold the status quo, advocates and medical patients have suggested their opposition is financially motivated. They also point out that because all other legal states, including Washington D.C., allow home grow, there is no reason for WACA to believe that Washington would be targeted for legalizing personal cultivation.
Do Patients Have A Right To Home Grow?
Home grow advocates suggest that if the law were to allow four to six plants of homegrow (like nearby Oregon and California, respectively), very few people would choose to do it. They argue that patients, like Madeline Holt, need the ability to obtain clean medicine at an affordable price or grow their own, and suggest that some of the commercially available cannabis is not only expensive and highly taxed, but potentially hazardous to their health because of the chemical pesticides, fungicides and fertilizers that may be used to produce it at economies of scale. Plus, patients who wish to juice cannabis leaves for the non-intoxicating acid cannabinoids need access to fresh growing plants every day.
“It’s so transparently absurd, the arguments against [home grow],” says Dominic Corva, the founder and social science research director of the Center for the Study of Cannabis and Social Policy (CaSP).
“Do we want policy driven by politics and markets, or policy that is actually good for society?,” Corva said.
Corva says he founded CaSP to study whether legalization could be used as “a force for good.” He says the messaging of the Initiative 502 legalization campaign in 2012 has “not lined up with the results.” The initiative was championed by the American Civil Liberties Union (ACLU) as an “end to the War on Drugs,” one that would stop the arrests and incarceration of non-violent offenders.
The campaign was divisive in the local cannabis community for a handful of reasons, as many felt it was a power grab by financial interests because it would only license larger commercial operations, prevented home grow and put an end to the state’s medical marijuana program. Many of their fears have come to fruition, and there is still considerable black market activity within Washington despite legal sales.
“The biggest evidence that cannabis legalization does not necessarily mean the end of prohibition, in Washington at least, is the fact that you can only commercially produce cannabis,” Corva said. “You can’t produce it in any other way, it has to be commercial. Home grow represents something much bigger than it really is.”
Corva adds that the ACLU stopped working on the issue after the law was passed. While the commercial industry and the revenues it generates have been legalized and taxed, he says the civil rights goals of the initiative have fallen by the wayside. He points to moneyed interests, embodied by WACA, as the reason patients and citizens are still having to argue for the right to grow the plant five years after it has been legalized.
Movement vs. Industry
When Washington’s legalization initiative I-502 made the ballot, there was sizable opposition from within the movement to legalize marijuana. The advocates who rejected it argued it was not legalization, but commercialization. Today, these same advocates are still pushing for home grow.
“The big lie in 502 was that it was strictly ‘recreational’ and wouldn’t affect medical at all,” said Don Skakie, an advocate who opposed I-502 and is actively pushing for home grow legislation. “Since the passage of 502, they immediately went after medical and shut down all the access points in operation. They reduced the [medical personal cultivation] plant count from 15 down to four.”
Skakie is referring to SB 5052, the same bill referred to by Meagan Holt, which effectively ended the state medical marijuana program. Skakie says regardless of the law, people are still growing, and choosing not to allow it only serves to make growers into criminals.
“Patients are breaking the law. They are still growing what they need to grow for themselves, but now they do it in fear,” he said. “We want to be able to grow a few plants in the privacy of our home without government intrusion.”
Skakie argues that enforcement should be complaint-based and there is no need for law enforcement to be performing home compliance checks or regulating personal cultivation within a set plant count at all — it is for personal use, not resale.
He says businesses can still find plenty of ways to profit from home grow and are not likely to see a significant decline in sales if citizens are allowed to do it. First, it is unlikely a recreational grower will produce quality on par with the shops.
More importantly, he says selling home growers seeds, clones and gardening equipment could represent a new source of revenue state-licensed businesses currently aren’t tapping.
At the root of his arguments, he says home grow actually will make Washington residents safer. “It’s about making cannabis normal and regular in society. We have legalization in Washington that is just Prohibition 2.0,” Skakie says.
Patients Unable to Fight Industry Money
Skakie and other advocates say the state already allows the production, possession and storage of another controlled substance: alcohol, which unlike cannabis, can lead to death when abused.
“I am struck by the fact that if I go in and I buy cannabis recreationally like beer, then no one needs to know anything. If I want access to it like a patient or want to grow a few plants, the hoops are higher to jump through than getting a ‘script’ for Oxy[contin] filled,” said John Kingsbury. Kingsbury is a medical patient who has been advocating for medical cannabis rights as well as personal cultivation since before legalization. He, like Skakie, opposed I-502.
“I see patients in more legal peril than ever before. I see them with dirtier access than they had before. I see them paying more for lower quality. It has been worse in every way [for patients], that is the picture I see,” he said.
Kingsbury has been working independent of any formal organization to organize the businesses and stakeholders who support home grow.
Not all licensees who are profiting from legal cannabis are opposing home grow. Those businesses that are supporting the efforts of Holt, Kingsbury and Skakie have organized into another organization to match WACA’s opposition: The Cannabis Alliance.The alliance includes Corva’s organization, CaSP, as well as Washington 502 licensees who support the right of private citizens to grow their own. Businesses that support personal cultivation and the Cannabis Alliance have been tracked by the organizers of Seattle Hempfest, so consumers are aware of which businesses are supporting what they consider to be a human right.
The Cannabis Alliance, along with individual advocates, is working with state legislators to support bills that have been proposed for the 2018 session. They are working with supportive state representatives in hopes they can finally get something passed this year.
“We are the underdogs,” said Kingsbury. “It’s about greed and it’s about control and about people who cannot give up on the Drug War. It’s about commercial interests that want to leverage that heavy regulation to line their pockets. That is really not what we want legalization to be about.”
Last year, during the 2017 Washington legislative session, a state representative named Brian Blake (D-Aberdeen) introduced a bill that would legalize home cultivation for adults, H.B. 1212, but the bill didn’t make it out of committee. Blake also proposed the bill that would have allowed Holt’s daughter to attend school. Blake is skeptical of the arguments that have emerged against the right for personal cultivation.
“I think folks should have the ability to take care of themselves. I think it just doesn’t seem like folks should be forced into the state market if they want to, have the time, and want to make the effort to produce enough for their own personal use,” said Blake.
This year, Blake has introduced another bill for home cultivation, H.B. 2559. A companion bill was introduced in the senate, S.B 6482. Both bills would legalize up to six plants of personal cultivation. H.B. 2559 has received its first hearing and was moved out of committee. It now sits in the House, where advocates say they have learned Gov. Jay Inslee may work to oppose it.
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