The Washington, DC Loophole for A Regulated Weed Market

Washington, DC is interesting when it comes to the topic of cannabis legalization. It’s generally left-wing population enjoys legal use, possession, and cultivation of cannabis; but with no sales market, what with it being the capital city of the country. That might change now that Congress is thinking of restructuring the policy in Washington, DC, which would create a regulated weed market via a planned legislative loophole.

Washington, DC, and weed policy

The country might be federally illegal for marijuana (recreational or medical), but it’s capital city, is not (recreational or medical). Washington, DC first passed voter Initiative 59 in 1998, which legalized the use of medical cannabis. Though 69% of the population was onboard, DC is the center of the federal government, and this made everything take much longer.

Congress held off the medical market for several years with the Barr Amendment; which disallowed the city from putting any funds into the weed industry, ie, no means of regulation. Though this was overturned in 2009, the first medical sales only took place at the end of 2013. In between, the Council of the District of Columbia (legislative branch of DC), passed a medical legalization bill in 2010. Congress did not disapprove in its allowed time frame of 30 days, making it into law.

In 2014 the Council of the District of Columbia passed a decriminalization measure. The following year, the people of Washington, DC were at it again with voter Initiative 71, which passed with 64.87%, and legalized the use of recreational cannabis. It went into effect February 26, 2015. The law permits those at least 21 to have up to two ounces; cultivate up to six plants: (three mature and three immature) at home; and give as a gift up to an ounce of cannabis to someone else.

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The measure also legalized the use of cannabis paraphernalia like bongs and pipes, and even technically legalized a sales market. The legislation covers the sale of cannabis by licensed retailers, but did not establish a regulatory system beyond this, and was not able to since then because of congressional opposition.

The governing of Washington, DC

Since 2014, Washington, DC has had legal recreational weed. Unlike legislative measures, both the medical and recreational legalizations were voted in by the people, leaving Congress no way of cancelling them, like it can for government legislation. But it still oversees everything that goes on in DC, and can create oppositional legislation, like the Barr Amendment. In a regular state, the state government actually overrides the federal government on these non-constitutionally stipulated matters. In Washington DC, this is not the case.

Washington, DC is a single city that creates the District of Columbia, and acts as the capital to the country; housing the White House, as well as the seats of the federal government. It doesn’t function like a regular state, and though it does have standard governing bodies like a mayor and city council, the district also functions under something called the Home Rule Act. This law requires all legislation passed by the local government, to go before Congress; which has 30 days to review it, and can deny it. In the case of cannabis, this has repeatedly meant an intervention by Congress that isn’t seen in any other state.

Luckily, what are we the people good at, as a savvy population that wants to get its way despite overbearing and often overpowering governmental bodies? Creating little loopholes.

In place of a legal sales market, DC has taken to using its gifting allowance as a form of payment method, creating a cannabis gift economy. In this economy, different businesses can give weed as a gift for the purchase of products, making for an indirect form of payment. It is this increase in ‘gifts’ which is leading Washington’s local government, and Congress, to an overhaul of the medical market in DC, which leads to a new loophole recreational market.

Will Act 24-798 get Washington, DC a regulated weed market?

We know governments sure hate missing out on things like tax revenue. Especially if they work really hard to thwart a market, just to have that market create its own workaround that cuts them out again. But they also sure hate admitting they were wrong. Case in point, Washington’s mayor initiated legislation that backhandedly opens a sales market in DC. And it passed, and is headed for signature, making this pretty close to a done deal.

There actually are already exceptions to the rule. DC has seven medical dispensaries, and one does sell recreational weed. Plus, last summer, in an effort to manage the growing ‘gifting’ industry, the mayor signed off on emergency legislation to ensure adults at least 21 can ‘self-certify’ that they need medical weed. Yup, you read that right. This legislation gets around the need for a doctor’s recommendation, making it possible for anyone to be a medical user and have access. Its called the Medical Marijuana Self-Certification Emergency Amendment Act of 2022. Congress let it pass through.

Now, the mayor is looking to expand this even more, and help the people of DC get to their weed. On January 30^th 2022, the mayor signed off on changes to the Medical Cannabis Amendment Act that would eliminate the limit on how many legal dispensaries can operate in the district. It would at least temporarily remove limits for cultivators; legalize delivery services; and allow dispensary tastings in authorized settings such as consumption lounges. All while under the cap of medical cannabis.

Are these changes for sure? Not exactly. Congress still has its 30-day window to review the legislation and deny it. The fact it didn’t do so with the legislation this past summer, however, indicates it understands that blocking this bill will mean less revenue for the government in the end, as these measures seek to close the gifting gap which has taken over. We will find out in early March what the final decision is, and should Congress keep out of it, the changes go into effect March 8^th.

These new provisions come with something else which has recently become rather standard in recreational legalizations: the expunging of records related to cannabis arrests. This was passed separately by lawmakers in the district, and should Congress not intervene, this part goes into effect March 16^th.

What will Congress do?

Likely nothing at this point. If it was going to intervene on the matter, it probably would have done it upon passage of the emergency bill over the summer. Emergency or not, Congress had the opportunity to get rid of it, and it didn’t. Trying to limit the scope now, would be a strange move. The whole concept of the emergency bill was to gain back revenue lost to gifting…and to institute a better form of oversight in general. These new rules seek to propel this idea forward, making it unlikely (but not impossible) that Congress will block it.

Though this wouldn’t institute an actual recreational cannabis sales market, it would increase the already existent workaround within the legal medical market. Last summer’s emergency bill makes it possible for undercover recreational sales, and this add-on would expand on that, but without creating a formal recreational industry. The weirdest thing about this loophole, of course, is that its being offered by a city government, to get around a federal law.

The reality is that trying to block this in general, moves in the wrong direction, and the federal government is aware of this. We know this from the recent pardon by Biden for all simple possession cases, along with the directive to the Department of Health and Human Services and Attorney General to do something. The pardon even included lines about how no one should be imprisoned for such crimes, and griped about the very classist nature of the cannabis laws it still hasn’t overturned.

If you’re paying attention, the federal government does almost nothing these days to go after the illegal market, with the exception of smear campaigns. This signals that it really can’t, from lack of resources, to lack of support. The people of the country want legal weed, and the US government knows this. If nothing else, these updates in the capital city, speak to this understanding.

Conclusion

Washington, DC is already operating off a weed loophole, and now that loophole might get big enough to take the place of a regulated recreational market. Best part of the whole thing? This loophole is 100% instituted by a government, to get around the laws of its own parent government! We’ll see if it goes through in early March.

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