The Cannabis Wild West — Understanding DC residents’ rights under Initiative 71
On November 4, 2014, the voters of the District of Columbia approved a cannabis legalization referendum entitled ‘The Legalization of Possession of Minimal Amounts of Marijuana for Personal Use Act of 2014 (“Initiative 71”)’. Sixty-five percent of voters approved Initiative 71, believing the law would be a means to rectify the inequities in the criminal justice system that have led to the disproportionate incarceration of minorities for cannabis-related crimes. Initiative 71 provides all citizens of the District with the ability, to produce, possess, and consume cannabis in the nation’s capital.
I. Rules of Initiative 71: The law provides little guidance to law enforcement and the public on the District’s new full adult-use market. Within the District, a person over 21 years of age can:
a) possess up to two ounces of cannabis,
b) grow between six and twelve plants in a residence,
c) transfer as much as an ounce to a person over 21 years of age, and
d) use or sell marijuana-related paraphernalia.
Although the law allows for the purchase of cannabis, it prohibits the sale of cannabis. See D.C. Code § 48–904.01(a)(1). Initiative 71, however, was written to be a placeholder for future legislation and regulation to develop a sale-and-tax regime like those in place Colorado and Washington in 2014.
II. Federal Reaction to Initiative 71: After passing Initiative 71, the voters of the District waited with anticipation to see if the U.S. Congress would intervene. As many Washingtonians are aware, the U.S. Congress can reject any law passed by the District. The Home Rule Act of 1973 permits Congress to pass a joint resolution of disapproval within 30 calendars days (excluding weekends and holidays), thereby repealing the law. When the 30-day window closed with no congressional action, the District’s adult-use cannabis market looked promising. Congress, however, had a different idea.
Federal appropriations language was passed to prevent the District’s government from spending any of its funds on the implementation of Initiative 71. The sponsor of the legislative provision, Representative Andy Harris (R-MD-01), believed that the provision would prevent Initiative 71 from going into effect. Instead, D.C. Mayor Muriel Bowser allowed the law to enter into force without the additional legal structure anticipated by residences and lawmakers in D.C.
III. Current Landscape of Initiative 71: Without the overlay of a statutory and regulatory structure, the D.C. adult-use market has become the Wild West of Cannabis. On any given night, District bars and restaurants host “hash bazaars.” These locations provide visitors with an opportunity to “purchase” cannabis and cannabis type products. These hash bazaars showcase a wide array of cannabis entrepreneurs, such as cannabis extract companies. In addition to these hash bazaars, companies throughout the District “gift” cannabis to customers who buy their products. The products sold range from stickers to art painted by the hearing impaired. Some companies provide no additional goods or service, but instead ask clients for “donations” in exchange for cannabis. Representative Harris’ attempt to dismantle the District’s democratically enacted cannabis laws has resulted in the creation of an awkward marketplace where everyone operates in a gray area.
IV. What is Legal under Initiative 71: So, the logical question asked by cannabis consumers and companies throughout the District is “Whether any of this is legal?” The answer is a very lawyerly, “it depends.” The majority of the hash bazaars are most assuredly not legal and neither are the companies that provide cannabis for donations. The practice of gifting cannabis to customers who purchase goods or services is much murkier. That’s why it’s essential that companies providing cannabis gifts to clients consult lawyers who understand the D.C. law and have experience helping clients navigate complicated legal environments.
