Will State-Legalization Leave Room for Sustainable Cannabis?

organic cannabis lawsThere has been a good amount of discussion recently about food, farming, and the sustainability of our agriculture industry, and as more states move toward legalizing cannabis, either for medicinal or recreational purposes, the cannabis industry will become a not insignificant part of this discussion.

A couple months ago, Hilary Bricken (one of my firm’s lead cannabis business lawyers) gave a truly great TEDx talk on “Big Marijuana.” Hilary’s talk focused on whether state-legal cannabis is helping create “Big Marijuana” and whether we can have marijuana legalization without infiltration of big business interests. Hilary noted that there is an entrenched and legitimate fear among both prohibitionists and cannabis advocates that Big Marijuana will be an inevitable consequence of legalization, and that mega-corporations will quickly seek to claim a share of the market. The fear many have of these big companies is that they are not tied in with local communities and they will employ business models that promote cannabis consumption, while fighting against science and regulations that might impact their bottom lines. And the groundwork is being laid now for policies that could favor “corporate cannabis” versus “cottage cannabis.”

The issue of sustainable cannabis has implications far broader than the cannabis industry, however. A recent study by the United Nations Environment Programme (UNEP) “ has confirmed that agriculture is having a monumental impact on [E]arth’s finite resources.” One of the fundamental goals of the report was to “contribute to a better understanding of how to decouple economic growth from environmental degradation.” Illegal marijuana grows on federal land have wreaked havoc on many an ecosystem, but we also need to be mindful of the ways in which state-sanctioned and regulated cannabis grows are impacting our environment, and how to make that cultivation sustainable.

Patagonia Provisions, as a part of its four-year initiative to promote sustainable food systems, recently released “Unbroken Ground,” a short film featuring farmers and ranchers who are finding new approaches to traditional agricultural practices. The film is worth watching, as it raises a number of issues faced by modern farmers that will no doubt be faced by cannabis cultivators as legalization pushes forward.

Thus far, cannabis cultivators who seek to produce sustainable and “organic” cannabis products have come up against obstacles unique to the industry. We’ve written before, for example, about the inability of cannabis businesses to tout their products as “organic.” Labeling a product as “organic” generally requires an actual certification, and that certification is regulated by the United States Department of Agriculture. Although alternative certifications exist for cannabis and cannabis products, none are approved or regulated by the USDA, and they are not synonymous with an organic certification. This is only one example of the unique struggles faced by cannabis businesses, but coupled with the overall increased cost of doing business due to regulatory compliance, federal tax burdens, and a host of other expenses, it may serve to divert the attention of cultivators from developing and implementing sustainable cultivation practices.

We know there are plenty of cultivators working toward sustainable and organic cultivation, and we hope these good actors will be rewarded in the states that have yet to flesh out their own cannabis regulations. Let’s keep the discussion rolling as to how we can build a cannabis industry that is not just profitable, but also sustainable.