California’s Prop 64 Supporters and Opponents Sue Each Other

California Marijuana LegalizationMark your calendars because we are less than three months away from Election Day 2016. This November 8th — in addition to voting for our next U.S. President — California voters will have an opportunity to legalize the recreational use of marijuana in the state for adults age 21 and over.

The Adult Use of Marijuana Act (AUMA) was officially added to the California ballot on July 1, 2016 as Proposition 64 after supporters collected the requisite number of signatures. As soon as word got out, statewide campaigns to reach California voters were in full swing from both supporters and opponents of Prop 64. Both sides have also prepared pamphlets with arguments for and against the initiative, to be included with Voter Information Guides distributed to eligible voters along with their ballots.

On August 4, 2016, the debate got even more heated when the Yes on Proposition 64 committee, the campaign committee behind the voter initiative, filed a lawsuit against the No on Prop. 64 committee, the initiative’s opponents, in Sacramento County Superior Court. In the lawsuit, the Prop 64 supporters claim that the opponents’ ballot arguments contain several “false and misleading statements” and requested the Court reject, delete, or substantially amend the statements before the pamphlets are sent to voters. The supporters argue that the statements are not based on fact, but instead are “scare tactics […] reminiscent of the ‘reefer madness’-style” campaigns commonly used by cannabis opponents during the decades-long War on Drugs. The challenged statements against Prop 64, and thus the legalization of recreational marijuana in California, include:

Children will be exposed to ads promoting marijuana gummy candy and brownies.

Prop 64 would repeal ‘countless consumer protections’ signed into law.

Prop 64 ‘rolls back the total prohibition of smoking ads on TV.

In challenging these statements, the Prop 64 supporters argue that Prop 64 prohibits marijuana products “designed to be appealing to children or easily confused with commercially sold candy or foods” and also bans marijuana advertisements aimed at people under age 21. They also dispute that Prop 64 would repeal any consumer protection laws and instead assert that the initiative expands those laws and protections.  Finally, they state that Prop 64 does not affect the prohibition of tobacco ads on TV and that federal laws control TV advertising and would continue to ban marijuana TV ads.

The Prop 64 opponents have fired back by filing their own lawsuit against the supporters’ ballot arguments, also claiming the use of false and misleading statements. They challenge Proposition 64 supporters’ statement that the initiative prohibits marijuana ads on TV, instead arguing that the initiative leaves the possibility of ads open.

Though the supporters admit that courts are reluctant to order changes to the language of ballot arguments unless the statements are egregiously false or misleading, they maintain that the statements made by the opponents qualify under such a standard. On the other side, the opponents say the lawsuits are a sign that “the silly season” of campaigning has begun.

In the end, it will be up to the Court to decide whether the challenges made in the lawsuits are a serious matter. But that’s only the first hurdle for California’s legalization efforts. Next it will be the voters’ turn to decide whether they will vote yes or no on Prop 64 and ultimately whether California will be the next state to legalize the adult use of marijuana this coming November.

We have raised a few of our own concerns about the initiative in previous posts, such as whether Prop 64 does enough to prevent big business monopolies, how unlimited vertical integration for recreational businesses could affect unintegrated medical businesses, and the risk that these big, integrated businesses will drive California marijuana prices too low. In addition, we will all have to have wait for agency rule-making for clarity on how the AUMA’s residency requirement will apply to entities and what compliance is necessary for priority licensing.

Still, despite these concerns and questions, we support the initiative overall because in our experience with other states (especially Washington and Oregon), once legislation passes, it becomes relatively easier to better it. And it is far easier to improve a passed initiative, than to try and craft from scratch and then pass a perfect initiative that pleases all parties.