Five years after Oregon became the third state to legalize cannabis, the legal marketplace is oversaturated, the medical program is dwindling, and, in many ways — not the least of which is federal law — some interactions with cannabis are still criminalized and prosecuted. Sixteen bills introduced to the Oregon Legislature in the 2019 session take varying and sometimes conflicting approaches to solving these problems.
There are currently six bills in the House of Representatives and 10 in the Senate that range from legislation that attempts to assist patients in the Oregon Medical Marijuana Program (OMMP), dueling bills to legalize the social consumption of cannabis in cafes and lounges, and two opposing bills that take dramatically different approaches to the massive statewide supply glut. One bill would create interstate compacts for export, and another, requested by Governor Kate Brown, would allow the Oregon Liquor Control Commission (OLCC), which oversees recreational marijuana, to start denying licenses due to market saturation or other circumstances as they see fit.
Patients in Oregon and other legalization states have long complained that with the rise of “recreational use,” medical programs have fallen by the wayside. One thing is for certain, the number of registered patients has been steadily declining since legalization began in 2015. In January 2015, a total of 70,000 patients were registered under the OMMP. As of July 2018, there were just under 40,000 registered patients left in the state.
It is an expensive annual process to register as a patient through the OMMP, and many of the benefits of doing so are no longer available post-legalization. Most patients no longer have access to low or no cost medicine through the medical caregiver program, there are very few medical dispensaries left, and the prices are so low on the recreational side the cost of registration may not offset the difference of paying a recreational tax for many qualifying patients, pushing them to the high tax recreational market. Registered patients do not pay the tax, but it currently costs up to $400 a year to become one. It costs $200 a year to register with the OMMP, in addition to paying a private doctor up to $200 to write a recommendation.
S.B. 599 would establish a patient committee to make recommendations to the Oregon Health Authority (OHA) on ways to fix the program to be more patient-friendly, paving the way for future legislation that addresses cost and availability for people with severe and chronic illnesses.
H.B 2722 would expand the types of providers who can sign off on medical recommendations to nurse practitioners and naturopaths, which could also offset the price of paying a private doctor for a recommendation.
H.B. 2687 would protect patients from getting kicked off an organ-donor transplant list because of their cannabis use. On Tuesday January 28, this was the first of the 16 bills to get a hearing in a committee, although no vote has yet been taken.
Representatives on the House Health Care Committee heard supportive testimony from Compassionate Oregon’s Anthony Taylor, Oregon NORML’s Sarah Duff, Oregon Retailers of Cannabis Association’s Jesse Bontecou, and Robin Socherman, the wife of a terminal kidney patient who was denied transplant of her kidney because of his medical cannabis use.
“My husband is not an addict, he has a painful disease. Other states have protected this.... Our family should not have to suffer this, nor should the other 300 or 400 families whose loved ones have been turned away… Our institutions are currently out of step with our state culture at the expense of families like mine,” Socherman testified.
The cannabis industry and advocacy groups in Oregon, and other legal states, have long complained that there are few spaces where adults or medical patients can consume cannabis legally. Landlords have the right to ban all renters’ cannabis use, not just smoking, and tourists visiting the region cannot consume it in their hotel rooms. This has pushed cannabis use into the streets and led to disproportionate enforcement of consumption laws against the poor and other marginalized groups.
Further, with a massive supply glut, proponents say allowing consumption in cafes could help increase in-state consumption of a product that still can’t legally leave its borders.
Two bills, one in the House and one in the Senate, aim to make cannabis cafes a legalized business in Oregon. Currently private clubs are “bring your own” and operating in a legal gray area in the City of Portland and a handful of other places. While these bills would essentially do the same thing by licensing social consumption and allowing these spaces to co-exist with licenses dispensaries, there is one fundamental difference: The Indoor Clean Air Act (ICAA).
All 50 states and the District of Columbia have enacted some form of an Indoor Clean Air Act, restricting smoking inside licensed places of business. Oregon’s Indoor Clean Air Act, unlike other states with adult use legalization, was amended to specifically ban social consumption of cannabis. Meanwhile, in nearby California, the first state to pass a version of the ICAA, cannabis smoking and vaping in social consumption lounges is already legal and happening in cities that choose to license them.
Under House BIll 2233, which was initiated at the request of cannabis business attorney and founder of the Oregon Cannabis Association (OCA), Amy Margolis, there is no change to remove cannabis from the ICAA. It does not allow indoor vaping or smoking and requires a sanitation license from the Oregon Health Authority, which oversees medical but not adult use cannabis. Advocates supporting another approach are suggesting this only further codifies existing law and suggest bringing the OHA into the process could be a non-starter.
“The Oregon Health Authority is very antagonistic to cannabis, so putting a license requirement [in OHA] for ‘recreational’ use is very risky, in my opinion,” said Anthony Johnson, chief petitioner of Oregon’s 2014 legalization initiative (Measure 91), as well as a founding member of New Revenue Coalition, a PAC formed to push this issue through the Oregon Legislature in 2019 and potentially put it on the ballot in 2020 if not passed. “I’m afraid that legalizing outdoor smoking/vaping and putting two regulatory bodies in charge (OLCC and OHA) will put more pressure on existing cafes that can’t get a license because they don’t have outdoor smoking/vaping areas.”
Under Senate Bill 639, the ICAA would be amended to remove “cannabis” and would legalize private cafes, cafes attached to licensed dispensaries, farm tours, tastings, and deliveries to hotels. S.B 639 has broader support for the advocacy community, including from Leia Flynn, an owner of a private club in Portland and board member at Oregon NORML.
“It is about social justice for all people. People are smoking in cars and allies, some of us are safe to do that and others still get arrested,” Flynn said, pointing out that marijuana arrests for public consumption are disproportionately happening to African-American consumers, which she sees daily in her work as a legal assistant to Portland-based attorney and advocate, Leland Berger.
Bills Addressing the Supply Glut
Oregon and California have long supplied national demand for cannabis during full federal prohibition. While processing, production, sale, possession, and use of cannabis are now legal in both states for adults, anything produced legally cannot leave state borders. With a population of just around 4 million, Oregon’s production has always far outweighed its demand, and now thanks to relatively fair free market licensing policies, a 1,ooo,ooo-plus-pound surplus has driven down prices, profit margins, and forced out smaller producers.
Two separate bills take very different approaches to the glut. S.B. 582 would legalize export via interstate compacts, allowing Oregon to serve markets where the supply is needed. S.B. 218 would allow the Oregon Liquor Control Commission (OLCC), which oversees issuance of adult use licenses, to stop issuing licenses for a variety of reasons, specifically highlighting the oversaturation problem.
S.B. 582 will be heard in the Senate Judiciary Committee on February 7, at 8:30am.
Post-legalization, social justice issues like expungement of marijuana crimes, employment for cannabis users, amendments to outdated prohibition sentencing guidelines, and Drug War reparations have dominated discussions about whether or not the social justice goals sold along with legalization have been achieved.
S.B. 420 directs the Oregon Department of Justice (DOJ) to find old misdemeanor convictions and ask prosecutors to have those convictions set aside so that they can also be expunged if they are now legal under state law.
H.B. 2655 would end employment discrimination (under state law). Despite cannabis use being legal in Oregon for adults over 21, if they work for a company that does random drug testing, they lose the right to consume, even if they are not at work, thanks to how long cannabinoids linger in the body post-consumption. This has prevented or hindered employment not just for adults who consume on their off time, but patients that need employment to live and do not become impaired from their use.
Finally, S.B. 578, which was initiated at the urging of Portland attorney Leland Berger, would address flawed post-legalization sentencing guidelines. Berger says that in 2017 he opposed legislation that took cannabis out of being a controlled substance throughout the Oregon Revised Statutes, not because he opposes its removal from the CSA, but because he said the specific legislation "purposefully created new crimes and increased penalties."
He says that 578 addresses two of those objections: failure to merge convictions for delivery and possession when the delivery is a possession with intent to deliver and the major issue is expungement.
"Section 2 has to do with transferring Commercial Drug Offense from the controlled substance chapter of the code to the cannabis regulation section of the code (ORS c.475->c.475B) where it was renamed Commercial Cannabis Approach. Essentially, when the state pleads and proves three of the 10 listed factors, it increases the presumptive sentence under our Federal Sentencing Guidelines from (for most prior record categories) presumptive probation to presumptive prison,” Berger said.