MONTPELIER, Vt. (June 1, 2022) – Yesterday, Vermont Gov. Phil Scott signed a bill into law that will help farmers and small producers operate in the state’s marijuana market despite ongoing federal cannabis prohibition.
A coalition of four Democrats introduced Senate Bill 188 (S188) on Jan 4. The new law modifies state regulations to make it easier for small farmers to access the state’s legal marijuana market. Under the law, the state will regulate the activities of a licensed small cannabis cultivator as “farming,” amend the criteria regarding the area for cultivating cannabis commercially and for personal cultivation, and allow licensed cultivators to purchase and sell seeds and immature plants to one another and for licensed wholesalers to sell such products to licensed cultivators.
There was some controversy surrounding the bill. The House added language to keep THC limits on high-potency cannabis in place. Earlier in the session, the Senate approved a measure to remove the controversial limits. According to Seven Days, THC limits “put licensed cannabis producers at a disadvantage against black market sellers and legal retailers in neighboring states, where caps don’t exist.”
Sen. Dick Sears (D) opposes the THC caps but told Seven Days he voted for the bill because House lawmakers were unwilling to budge, and the bill contained other necessary adjustments to the state’s cannabis law.
Vermont legalized commercial marijuana sales in 2020. It issued its first cultivation license last month and retail sales are set to being Oct. 1. Current law prohibits farmers from selling their products directly to consumers. They must wholesale their cannabis and cannabis products to wholesalers or retailer licensees.
Officials hope that making it easier for small growers to get into the legal market will curtail the black market for marijuana. “To shift as much of the people that are currently out there in Vermont, growing cannabis, and selling it in an untested, unregulated way … trying to create a regulatory environment that invites them into a, you know, a regulated space,” Cannabis Control Board chair James Pepper said during an interview earlier this year. “That allows them to kind of shift their illegal grow into a legal one.”
In effect, even with the THC limits, the enactment of S188 takes a step toward relieving small farmers from the regulatory burden under the current law and making it easier for them to participate in the legal cannabis market.
With Gov. Scott’s signature, S188 went into immediate effect.
EFFECT ON FEDERAL PROHIBITION
All of this is illegal according to the federal government.
Under the federal Controlled Substances Act (CSA) passed in 1970, the federal government maintains complete prohibition of marijuana. Of course, the federal government lacks any constitutional authority to ban or regulate cannabis within the borders of a state, despite the opinion of the politically connected lawyers on the Supreme Court. If you doubt this, ask yourself why it took a constitutional amendment to institute federal alcohol prohibition.
The legalization of marijuana in Vermont removed a huge layer of laws prohibiting the possession and use of marijuana in the state even though federal prohibition remains in effect. This is significant because FBI statistics show that law enforcement makes approximately 99 of 100 marijuana arrests under state, not federal law. When states stop enforcing marijuana laws, they sweep away most of the basis for 99 percent of marijuana arrests.
Furthermore, figures indicate it would take 40 percent of the DEA’s yearly budget just to investigate and raid all of the dispensaries in Los Angeles – a single city in a single state. That doesn’t include the cost of prosecution. The lesson? The feds lack the resources to enforce marijuana prohibition without state assistance.
A GROWING MOVEMENT
Colorado, Washington state, Oregon and Alaska were the first states to legalize recreational cannabis, and California, Nevada, Maine and Massachusetts joined them after ballot initiatives in favor of legalization passed in November 2016. Michigan followed suit when voters legalized cannabis for general use in 2018. Vermont became the first state to legalize marijuana through a legislative act in 2018. Illinois followed suit in 2019. New Jersey, Montana and Arizona all legalized recreational marijuana through ballot measures in the 2020 election. Earlier this year, New York, New Mexico, Virginia and Connecticut legalized marijuana through legislative action.
With 37 states allowing cannabis for medical use, and 18 legalizing for adult recreational use, the feds find themselves in a position where they simply can’t enforce prohibition anymore.
The lesson here is pretty straightforward. As Tenth Amendment Center Executive Director Michael Boldin noted, “When enough people say, ‘No!’ to the federal government, and enough states pass laws backing those people up, there’s not much the feds can do to shove their so-called laws, regulations, or mandates down our throats.”
Efforts to ease regulations on small growers in Vermont highlight another important strategic reality. Once a state legalizes marijuana – even if only in a very limited way – the law tends to eventually expand. As the state tears down some barriers, markets develop and demand expands. That creates pressure to further relax state law. These new laws represent a further erosion of unconstitutional federal marijuana prohibition.
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