Marijuana Home Grows and the Challenges of State Legalization in the Age of Trump

Last week the Washington State Liquor and Cannabis Board (the “LCB”) held a public hearing on proposals to allow recreational marijuana home grows. In brief, the three proposals are to: 1) strictly regulate recreational home grows; 2) allow local control over recreational home grows; and 3) prohibit home grows.  The proposals are detailed in my post from last month.

The LCB heard over two hours of public testimony both in favor and opposed to home growing. Those in favor point to the fact that of the eight states that have legalized marijuana, Washington is the only state that does not allow individuals to grow marijuana at home. Proponents also testified that limited home grows will not pose any threat to the legal industry.

Many of those opposed, however, expressed concern that allowing home grows could trigger a crackdown by the Trump administration. All of us who work either directly or indirectly in the legal marijuana industry have been living with the fear of U.S. Attorney General Jeff Sessions taking enforcement action against legal marijuana businesses in Washington State.

What has protected the legal marijuana industry thus far is the Cole Memorandum, which provides that the federal government will take a hands-off approach in regard to the enforcement of marijuana laws in states that abide by certain priorities. These priorities include keeping marijuana out of the hands of minors, preventing diversion of marijuana to other states, and keeping organized crime out of the legal market. But, the Cole Memorandum is non-binding and can be revoked at anytime by the Trump Administration.

It has been argued that allowing marijuana home grows would make compliance with the Cole Memorandum more difficult as it would be a challenge for the LCB to regulate an unlimited number of individual growers. It is also not clear whether the LCB has the ability or a model for tracking individual plants in residences throughout Washington.

On the other hand, if a primary goal of state legalization is to get rid of the black market then the next logical step for state legalization would be to allow individuals to grow a limited number of plants for their own use, whether the use is medical or recreational in nature. It is unlikely that limited home grows would affect recreational marijuana retail sales in the state. Existing retail consumers are unlikely to start growing pot at home if the law changes. Rather, it may provide individuals who will continue to grow their own marijuana, regardless of the state of the law, a legal mechanism for doing so.

It is also difficult to see how allowing limited home growing would be a tipping point for the Trump Administration. Jeff Sessions has on numerous occasions expressed his opposition to marijuana legalization. It appears the only thing holding him back from revoking the Cole Memo and enforcing federal marijuana laws is the potential political blowback since the majority of the country favors legalization. Sessions would also encounter steep resistance from the states that have legalized marijuana, which are reaping millions of dollars in tax revenues.

The LCB will be making its formal recommendation on this issue in early December. Thereafter, it’s up to the Washington State Legislature as to whether to allow recreational marijuana home grows.

For more information on the regulation of marijuana businesses in Washington State, please contact Heather Wolf.