This has been a historic year for marijuana in Oregon. In addition to the legalization of recreational marijuana, we witnessed the roll out of the Oregon Liquor Control Commission (OLCC) regulatory program and saw significant changes to the Oregon Health Authority’s (OHA) medical marijuana programs. There was a whole lot of rulemaking, which is still ongoing, at the state and local levels. The final piece of the high-level regulatory puzzle will be the revised rules en route from OHA (not for the temporary sales program, mind you, the other rules), some of which have already trickled in, as we recently covered here.
Even for us cannabis lawyers, the regulatory structure can appear labyrinthian. Local laws aside, the OLCC and OHA are distinct state agencies, hardly talk to one another, and administer complex regulatory programs that govern the exact same plant. Rounding out this cumbersome regime, the Oregon Department of Agriculture (ODA) also administers many programs that directly affect pot industry entrepreneurs. These programs cover food safety (edibles), scales, pesticides, and water quality.
It is safe to say that no commodity in Oregon is more heavily regulated than cannabis. We can point to a couple of reasons for this. First, marijuana remains a Schedule I controlled substance at the federal level. In order to avoid federal enforcement action, Oregon, like Washington and Colorado, has gone to great administrative lengths to attempt to comply with Cole Memo priorities. Second, Oregon’s now 17-year-old medical marijuana program was well ensconced when Measure 91 passed last year. People are passionate about, and protective of, that program. Finally, the state is dealing with something very new, which should generate a ton of state revenue, and the natural tendency is to overreach.
Still, it is hard to imagine that Oregon will have medical and recreational marijuana programs run concurrently and by distinct state agencies, forever. People are starting to say this out loud. In a recent Op Ed piece by the Oregonian, the newspaper wrote that keeping recreational and medical marijuana separate “makes no sense.” In support of its argument, the paper cited inevitable inefficiencies related to consumer markets, public spending, cannabis tracking, and finally, the dreadful specter of administrative bloat. The newspaper urged legislators to combine the medical and recreational programs as quickly as the next legislative session.
To us, that seems like a long shot. Measure 91, supported by a clear majority of Oregon voters, protected Oregon’s medical marijuana program. Although our state representatives went beyond the scope of the initiative when HB 3400 fussed with medical pot, complete integration into a recreational market would have been too much at that time for many people. Now, as the programs slowly conflate and we get an extraordinary helping of rules, the thinking has begun to change, just as we observed in Washington and Colorado. Entrepreneurs locked into Oregon’s medical cannabis market would be wise to plan ahead.