What you need to know about Maine’s delayed pot law

Some say the bill crafted by lawmakers avoids a 'wild, wild West,' while others say what voters approved is best. 

By Penelope Overton


With the marijuana bill adopted by the Legislature last week facing a likely governor’s veto, some lawmakers say Maine could turn into the “wild, wild West” of marijuana.

Pot shops selling Snoopy-shaped edibles next to schools. Social clubs cropping up in bucolic village centers. The lowest pot tax in the country. Drive-up window sales.

“Without this bill, we go back to the referendum law,” said Sen. Roger Katz, R-Augusta, referring to the initiative approved by voters last November that his committee spent months refining. “I think we can all agree that law is flawed. Over the last nine months, we found out just how flawed that law is.

Going back to that, it would be chaos, confusion. We’ll be throwing oxygen on the fire of the black market. It will be the wild, wild West in Maine. How could anybody want that? Our bill, it’s not perfect, but it’s much, much better than that.”

Could that happen? Language embedded in the 30-page referendum makes it unlikely. The law prohibits applicants from growing recreational cannabis or operating a marijuana retail store or social club without approval from the state licensing authority and the host municipality. There is a moratorium on all but the personal-use parts of the ballot-box law for now, but even when it lapses in February, Mainers couldn’t launch an adult-use market without the OK of the state and host towns.

Gov. Paul LePage, a staunch marijuana opponent who once called it a deadly gateway drug, is unlikely to sign off on implementation of the ballot-box law if he wouldn’t direct his state agencies to even collaborate with Katz and the joint select committee on their efforts to tighten up the regulatory loopholes and craft a more conservative version of the Marijuana Legalization Act. Katz said repeated requests for collaboration were ignored. “We practically begged, but nothing.”

The voter-approved law says the state licensing authority has nine months to adopt rules for the proper regulation and control of recreational marijuana, but it does not include any timeline for the state licensing authority to begin accepting or issuing licenses.

Marijuana advocates who support the implementation bill from Katz’s committee say the referendum law has “a million loopholes” that the LePage administration could exploit to delay rolling out retail sales.

For example, the voter-approved law says an application for a marijuana cultivation, manufacturing or retail license must be made to the state licensing authority on forms prepared and furnished by the state licensing authority. “What happens if there is no form?” asked David Boyer, the state director of the Marijuana Policy Project. “That’s just one of a million loopholes in the MLA that could be used to stop the full rollout.”

PROS AND CONS OF THE STATUS QUO
Without licensed marijuana growers, manufacturers and retailers, the Maine recreational marijuana scene come March will likely look much like it does now. Adults can grow up to six mature marijuana plants and possess up to 2½ ounces of marijuana for personal use, but they can’t legally buy or sell it. Adults can grow those six plants on someone else’s land with written permission, as long as the plants are tagged, locked and not visible to the public.

Some people, like Katz, say the status quo is bad for Maine – and good for the thriving gray and black market.

Katz believes passage of the Marijuana Legalization Act has boosted public demand for a product that is not legally available for purchase, creating a vacuum in Maine that street dealers are exploiting for big profits. He has no hard evidence of this, but he said he heard repeated testimony in front of the select committee to indicate this was true. Gray-market entrepreneurs have also rushed in to take advantage of loopholes in the referendum law, he said.

For example, the practice of gifting marijuana – giving someone pot at no charge but packaging it in a baggy that costs $100 – may violate the spirit of the voter law, but it’s not technically illegal, he said. Some entrepreneurs have taken gifting to a new level, opening “bud and breakfasts” where they rent rooms at high rates but then give guests goodie bags filled with pot. This has riled town officials in host communities, like Cornish and Auburn, who want a tougher state law, Katz said.

Colorado’s former marijuana czar, Andrew Freedman, urged Maine lawmakers to prohibit the kind of large collective grows allowed by the referendum law. In Colorado, the black market used big, unregulated home grows to feed demand in neighboring states where adult-use marijuana remained illegal, he said. Several big grows were targeted by armed robbers, and turned deadly. These factors forced Colorado to tighten its law, much like Maine is trying to tighten its, he said.

ADVANTAGES OF WAITING
Not everybody thinks returning to the underlying referendum law would be a bad thing. Legalize Maine withdrew its support for the committee’s implementation bill after several last-minute changes to the bill, which its members say were conducted without public input and would make it too hard for its members, many of whom are local medical marijuana caregivers, to transition into the recreational market in the small towns were they live now.

The referendum law gives medical marijuana caregivers in good standing for two years prior to legalization a licensing advantage, allowing them to get the first shot at a limited amount of marijuana growing space that would be available under that law. The committee bill pending before LePage takes off the cultivation cap, strips the bill of caregiver licensing preferences and instead requires any applicant to have lived in Maine for at least two years.

In the current scenario, where the referendum law is in place but not fully enacted, many of Legalize Maine’s caregiver members could continue to sell marijuana to their certified patients and benefit from an increased post-referendum demand for marijuana, using a cycling loophole in the medical marijuana law that allows them to stretch the patient limit by rotating hundreds of patients through a five-patient cap.

The group’s president, Paul McCarrier, urged state lawmakers to scrap their overhaul plans. When asked about how scuttling the overhaul bill might slow down rollout of the adult-use market, McCarrier said getting the adult-use rules right was worth the wait, that tweaking the committee bill until it was “just right” didn’t have to take all that much time. He said returning to the voter-approved law would probably be the quickest and best route to adult-use commercial sales of all.