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Marijuana Ballot Initiative

Most reports on marijuana-legalization efforts in California have stated that a ballot initiative is in the works for the 2016 election.  In fact, some of the most noted activists have said that California is not ready to pass legalization in 2014. However, it appears that there is a rift between some of the groups, with one organization, Americans for Policy Reform, attempting to have a ballot initiative qualified for the 2014 election. 

Their initiative, the Marijuana Control, Legalization and Revenue Act, is a rather comprehensive legalization and regulation scheme.  It would allow for cultivation and retail sale of marijuana with an age-21 law. 

As with most of the ballot approaches to legalization, it raises a number of public health and policy concerns.  Here are a few:

1.    While it retains some level of local community control for retail outlets, it requires that such restrictions be obtained through ballot initiatives.  So other than the rather loose restrictions already included in the initiative (for instance 600 feet from public K-12 schools and no more than 1 store per 25,000 residents), a city would need to use a cumbersome and unpredictable ballot method to limit storefronts.  For those of us in Higher Education, we could not seek to institute a campus-buffer from these shops without a ballot initiative campaign.  Nor could sensible conditional use permits be applied (as they are with liquor stores) that would perhaps reduce the nuisance potential of such shops.

2.    The initiative prohibits the use of chemical tests to establish cannabis impaired driving.  Therefore, it would not be possible without amendment to establish a per se impaired driving law similar to the .08 law currently used for alcohol.  Given the breadth of research on THC impairment, including scientifically based recommendations for active blood THC levels for per se limits, such a prohibition seems unfounded and may substantially limit law enforcement’s ability to address cannabis impaired driving.  Presumably, with increased access from legalization, impaired driving will only become more probable.  Limiting the tools for enforcement seems counter productive and harmful to public health.

3.    The initiative prohibits State “resources” from being used to prohibit possession or use of cannabis.  For those of us at State schools, this perhaps would lead to a rather difficult situation.  The Federal Drug Free Schools and Community Act requires that we prohibit cannabis.  Failing to do abide puts us at risk of losing all federal funds.  However, it would appear that this makes complying with the DFSCA expressly forbidden with respect to cannabis.  In fact the language prohibiting enforcement would appear to even bar enforcement of underage possession laws included in this initiative.  But perhaps the lawyers would read Section 27870 of their initiative differently.

The MCLR initiative may never qualify for the ballot, and may not even get the support of the broader legalization community, but it is important for us to keep an eye on it regardless.  We remain in a reactive mode for marijuana policy, with legalization activists leading the way with ballot initiatives that continue to test the boundaries for acceptable reform.  Unfortunately, public health and community input is not at the table when these initiatives are drafted, and motivated activists replace the deliberative process.