Oregon Cannabis Laws: The War Between Recreational And Medical

When I-502 proponents were campaigning in Washington in 2012, many of them promised that I-502 would not change current medical cannabis laws. Though I-502 itself did not directly change Washington’s MMJ laws (it did not even mention those laws in its text), the overall effect of I-502 inevitably forced the state legislature to essentially eliminate Washington’s then existing medical marijuana laws. The Washington legislature simply could not tolerate a loosely-regulated medical marijuana system competing with and undermining the state’s strictly regulated  I-502 recreational industry.

Oregon's new civil war is between recreational and medical cannabis
Oregon’s new civil war is between recreational and medical cannabis.

We can already see the same politics, logistical issues, and competition concerns swirling in Oregon between the Oregon Medical Marijuana Program (OMMP), Measure 91, and the legislature. Though Measure 91, just like I-502, does nothing to explicitly change the OMMP, Oregon lawmakers are already recognizing that the OMMP and Oregon’s medical marijuana laws apparently need overhauling to ensure a uniform and better controlled state-wide marijuana system. Though not as dramatic as Washington’s recent passage of SB 5052, the Oregon legislature is getting closer to a medical marijuana facelift.

And here is why:

  • The OMMP probably does not adhere to the August 2013 Cole Memo. The Cole Memo prioritizes the Department of Justice’s medical and recreational marijuana enforcement goals, ranging from preventing marijuana diversion to keeping cannabis out of the hands of minors. For states to have a good chance of keeping the federal government (the DEA, the Justice Department, etc.) from overly interfering with their cannabis legalization regime, they must abide by the Cole Memo. Therefore, the Cole Memo’s eight enforcement priorities should be at the forefront of any state marijuana laws or rule making, and all states’ marijuana laws and rules passed since 2012 have been sensitive to the Cole Memo. To the OMMP’s credit, medical marijuana existed in Oregon long before the Cole Memo issued. Nonetheless, for the safety and security of all OMMP participants, we expect the Oregon legislature will revise the OMMP to bring it in line with the Cole Memo.
  • The Oregon Liquor Control Commission (OLCC) has already made clear that OMMP dispensaries will not be allowed to distribute adult use cannabis under Measure 91 unless they adhere to the same traceability and tracking requirements as Measure 91 storefronts. This would mean that Oregon will have OMMP dispensaries distributing just medical marijuana under very different operational standards than recreational dispensaries operating under Measure 91. This will almost certainly mean that the recreational industry will bear higher costs from having to comply with robust recreational laws and rules created by the OLCC. Consequently, Measure 91 stakeholders may also want the legislature to revise the OMMP to ensure fair play.
  • The OMMP only somewhat regulates medical dispensaries and it does not regulate manufacturing and cultivation. The OLCC will regulate Measure 91 growers and manufacturers but no Oregon agency directly regulates or polices medical cannabis cultivators and manufacturers. Though medical cannabis cultivators and manufacturers may (if they choose to do so) register with the state, there is no state regulatory oversight beyond that. In other words, under existing Oregon law, the State does not know who is cultivating or where the cultivated cannabis is going. Recreational cultivators and manufacturers operating under Measure 91 will be required to register with the State and to succumb to rigorous state law standards and they will no doubt quickly demand that the State require the same of all medical cannabis cultivators and manufacturers.
  • Oregon’s legislature already took a serious shot at overhauling MMJ by nearly passing Senate Bill 844. SB 844 started out as a “technical fix” for Measure 91 but quickly morphed into a bill would have made some significant changes to the OMMP, including reducing patient plant possession, severely restricting medical grow locations, and increasing state monitoring and policing of those grows to prevent cannabis diversions into the illegal market. SB 844 also would have allowed Oregon cities and counties to ban medical cannabis grows and businesses outright. The ban issue created so much contention among lawmakers that the bill eventually stalled — at least for now.

Like it or not, when a state moves forward with a heavily regulated marijuana regime, any existing regime that is not nearly identical to the new regime will come under serious scrutiny. But by the same token, states need to be sensitive to medical cannabis patients and their specific needs and not simply toss those people overboard for the sake of strict regulation or tax revenue generation. Though we are confident Oregon will not lose its medical marijuana program entirely, we have our doubts about the OMMP’s continued viability.