Thursday, October 29, 2015
WASHINGTON'S MARIJUANA LAWS AND SOCIAL JUSTICE—OUR CLINICAL WORK AT SEATTLE UNIVERSITY SCHOOL OF LAW
Our Consumer Protection Clinic provides opportunities for students to represent clients in a range of civil mediation and litigation. This year, in addition to helping formerly confined citizens seek relief from their legal financial obligations (more on that in our next post), my clinic students are engaged in other advocacy and policy work. With the passage of Initiative 502 in 2012 and Senate Bill 5052 this past July, part of our Clinic advocacy involves working against the consequences of Washington’s cannabis laws on our most vulnerable populations.
These laws have given our students an opportunity to passionately pursue the ends of social justice in a fairly unprecedented legal area. Our students are 1) developing policy prescriptions regarding cannabis regulation and the poor and disabled; 2) developing a tenant advice manual for residents of federally-supported housing, and; 3) analyzing Washington state cannabis advertising for unfair or deceptive representations or regulatory violations through the lens of the our Consumer Protection Act.
Outside of the criminal law context, a first take may not readily illuminate the panoply of social justice issues underneath the legalization of cannabis (of which marijuana is just one form). To be sure, nationwide there have been mighty efforts advocating changes in our state and federal sentencing laws. In Washington as elsewhere, generations of the most ardent advocates at every turn have, for example, fought against the disproportionate arrest and conviction rates of minorities for marijuana use and/or possession. Initiative 502 has already had a profound effect on the state’s criminal justice system, economy, and overall social welfare of Washingtonians. A closer look however reveals disconcerting impacts upon poor and disabled consumers, and tenants of federally-subsidized housing.
This past July saw a major change in Washington’s existing medical cannabis regulatory framework. One major feature of the new laws prohibits unregulated medical cannabis access points unless the organization obtains a license through the Washington State Liquor and Cannabis Board (LCB), and meets all LCB requirements. Essentially, medical marijuana sales will be conducted at recreational retail shops. While in important ways, SB 5052 will benefit medical cannabis patients, the LCB requirements will have detrimental effects on those patients in two main areas: distance proximity and affordability.
One of the most onerous requirements of a licensed cannabis store is that it must be at least 1,000 feet away from “any…public transit center[,]” i.e., bus or rail stop. From the medical cannabis patient’s perspective, the 1,000 feet requirement has harmful implications. Many medical cannabis patients are mobility-impaired, and require the use of wheelchairs, walkers, or canes. As many medical cannabis patients cannot independently ambulate and/or must rely on public transportation, a walk of over 1,000 feet to gain access to their medicine can be a challenge and a health risk. Additionally, because of possession amount restrictions, medical cannabis patients must make more frequent trips to retail outlet—incurring additional costs, times, and physical exertion.
Medical cannabis patients currently enjoy access to a plethora of medical cannabis products in medical cannabis access points. Most importantly, edible products have been developed in access points since 1998, and companies have refined their dosages and recipes to perfection. Under SB5052, all cannabis products must be approved by the LCB and in compliance with its regulations. Currently, edibles cannot exceed a serving size of 10mg. This presents a serious issue for medical patients, many of whom require dosages ranging from 50mg-800mg. This requires a medical patient to purchase over five times the amount of LCB approved edibles.
Not only do the patients have to purchase more products, but the products themselves are more expensive. For example, a 10mg edible in recreational stores costs upwards of $10, where a 50mg edible in medical cannabis access points only costs $5. Therefore, a medical cannabis patient would have to purchase $50 in edibles at a recreational store, where they used to pay $5 in a medical setting. Currently, there is a 37% tax assessed on all cannabis and related products, which is collected at the retailer’s point of sale. While it is worth noting that medical cannabis patients who are in a state registry are exempt from paying that tax, the higher costs still makes cannabis less affordable to for all medical patients likely on a fixed income (e.g., SSD or SSI), or otherwise least able to afford it.
The 37% tax may also not work to eliminate the black market for cannabis product. While street prices of cannabis usually stay in the area of $10/gram, prices in retail stores are $10-$20/gram, plus the 37% tax and additional 9.5% sales tax. Because cannabis is significantly cheaper to purchase on the black market, cannabis consumers in poorer communities will be inclined to avoid retail stores and procure their cannabis on the street. Consequently, instead of obtaining cannabis at state-approved retail outlets, cannabis consumers in poor neighborhoods may choose to avoid the long travel and additional taxation to obtain cannabis through illicit means via the black market instead. Aside from the uncaptured revenue, the cannabis cost structure will doubtlessly perpetuate crime in the poorest neighborhoods—doing little to solve one problem that I-502 intended to remedy.
Currently, federal law still classifies marijuana remains an illegal Schedule I controlled substance under the Controlled Substances Act. It is a federal crime to possess, cultivate, or distribute marijuana. However, the Department of Justice (DOJ) has indicated that states which implement strong and effective regulatory and enforcement systems will not be high on its enforcement priorities.  However, the DOJ has not given carte blanche to those states, as federal law has not changed at all. It’s directive provides no defense to federal prosecution, especially as it regards the DOJ’s expressed enforcement priorities: eliminating channels of access by minors; organized crime; possession, use, procurement, support, or distribution through interstate commerce; trafficking in other illegal drugs; violence and firearms; drugged driving and public health; grows on public lands, and possession or use on federal property.
Federal agencies such as the Department of Housing and Urban Development have not given dispensation to landlords who receive federal housing funds (e.g., Section 8 reimbursements). In other words, it is a crime to possess, use, or cultivate marijuana (in any form, e.g. edibles) in federally financed housing. Tenants of federally subsidized or funded housing, thinking they are lawfully possessing, consuming, and/or growing marijuana (which the law allows in small amounts) risk evictions and even prosecution for violations of federal law. Such outcomes would exacerbate our already disproportionate prosecution and incarceration of people of color. Such actions would also exacerbate the collateral consequences for those people, as it erects another barrier to the ability to secure alternative housing (many landlords will not rent to anyone with a felony arrest or conviction), stable employment, and, if convicted, carceral debt.
Unfair and Deceptive Practices
Washington’s cannabis regulations establish fairly strict guidelines on permissible means and content of advertising and product labeling. If a harmful cannabis product enters the market, there is yet no legally-established l mechanism in place specifically tailored to cannabis product recalls. Our students are developing recommendations on that score in reference to the industry best practices, as well as the state and federal Food and Drug Administration’s recall processes. Moreover, our students are performing image and text analysis of dozens of marijuana advertisements of state retail, production, and processing outlets to ensure they do not make representations that are likely to mislead consumers or specific audiences such as children. The endgame of their research is to present their findings to interested stakeholders to ensure that laws and regulations are followed, but those laws and regulations strike the appropriate balance between governmental interests, commercial interests, and consumer rights.
While impacting all Washingtonians as consumers in general, our cannabis laws and regulations work unique hardships and challenges upon the poor and disabled. Despite the conflict between federal and state law, students in our Consumer Protection Clinic are properly engaging in the practice of law under our states ethical guidelines as they regard giving advice and assistance to parties seeking to comply with Washington laws, or otherwise form and operate business entities pursuant to I-502 and federal law. Students in our Clinic are developing materials and programs aimed at tenant advice and education. Materials and programs will inform tenants about federal and state housing regulations, their rights and risks, as well the duties, rights, risks of landlords. Our students are also articulating policy prescriptions which urge the re-examination of current laws as they relate to the 1000 feet buffer zone rule, taxation, and product misrepresentation. It is our hope that those proscriptions will have a positive, long term impact on this virtually unchartered area of recreational cannabis laws—especially as those laws impact those most vulnerable to the adverse consequences of this new regime.
Special thanks to Bonnie Fong, 3L for her assistance in developing this article.
In Washington State, for example, the African Americans were 2.8 times more likely than whites to be arrested for marijuana possession. Report of the American Civil Liberties Union, THE WAR ON MARIJUANA IN BLACK AND WHITE, JULY 2013, Appendix B.
 RCW 69.50.331 (8)(a). The buffer zone also applies to “elementary or secondary school, playground, recreation center or facility, child care center, public park… library, or game arcade that allows minors to enter.”
 See, e.g., James M. Cole Memorandum August 29, 2013 (on file with author).
 Washington State Bar Association Advisory Op. 201501 (2015).