Backers of an effort to legalize adult-use marijuana have raised abundantly more funds than their opposition, and are burning money faster than a skinny joint.
Smart and Safe Arizona took in roughly $1.1 million this quarter, bringing its total to $2.7 million, though it has only $80,000 left after spending heavily on consultants and signature gathering.
The weed campaign is leaning heavily on the dispensaries for contributions, with most of its money coming from the two biggest chains – Harvest and CuraLeaf. Harvest kicked in $245,000 in cash or in-kind contributions, and CuraLeaf contributed $200,000. Cresco Labs, another dispensary, gave the PAC $300,000 as well.
Harvest has now outspent all other contributors, and has pumped more than $1 million into the legalization campaign. Of course, dispensaries stand to see a massive financial benefit if legalization passes, as they will have first-dibs on recreational licenses. And although Smart and Safe has burned through most of its income, it still has more cash on hand than the opposition group that formed last month.
Arizonans for Health and Public Safety, which opposes legalizing recreational use of marijuana and previously refused to disclose who its backers are, has brought in only $50,025.
It has two backers – one from an individual contributor who gave $25 and the rest from the Center for Arizona Policy, which contributed $50,000.
Smart and Safe spent $100,000 on signature gathering in March – more than its opposition PAC was able to raise overall.
The competition still has months to gain traction, and once the ballot is set donors will know how many initiatives will be around to try to defeat, but the 2020 marijuana legalization effort has taken a much different shape than the last attempt in 2016.
The Campaign to Regulate Marijuana Like Alcohol, or on the ballot known as Proposition 205 raised $6.5 million during its campaign, barely outraising the opposition with $6.4 million. The opposition in 2016 was spearheaded in part by Yavapai County Attorney Sheila Polk, Gov. Doug Ducey, who Polk thanked after defeating the proposition, and the Arizona Chamber of Commerce and Industry, among others.
The chamber won’t take an official stance on Smart & Safe even after pouring $1.5 million into the opposition in 2016, and some of the other big contributors of the anti campaign are either dead or in jail.
Bruce Halle, the former owner of Discount Tire, contributed roughly $1 million in opposition in 2016, but he has since passed away. Insys Therapeutics contributed $500,000 and its founder is now serving five years in prison for his role in contributing to the national opioid crisis.
Smart and Safe has been dubbed the likely only initiative to make it onto the ballot given the COVID-19 crisis, but several other campaigns, including marijuana, are tied up in twin battles in state and federal court to be able to collect signatures online like candidates do.
Three of those initiatives raised more than $1 million in the first quarter.
Arizonans for Second Chances, Rehabilitation, and Public Safety, the criminal justice initiative, brought in $1.2 million, though it burned through more than half of that.
The Second Chances initiative, which aims to increase public safety and reduce recidivism, received all of its cash contributions from the same group, a liberal dark-money group from San Francisco called Tides, which has ties to billionaire George Soros.
Arizonans for Fair Elections, which aims to overhaul the state’s election laws – making it easier to vote and limit spending from corporations – brought in nearly $2 million, almost all of it coming from the Arizona Advocacy Network.
The PAC spent nearly all of that money, however, leaving it with just more than $50,000 at the end of March.
Arizonans Fed Up with Failing Healthcare already had half-a-million dollars to start, and brought in another $1.2 million this quarter. But it spent nearly every penny it had.
All of its money came from a California group: Service Employees International Union United Healthcare Workers West. SEIU’s former president, Andy Stern, has strong ties to Soros as well. Both the health care and election initiatives are caught up in a federal legal battle over collecting signatures online. The judge dismissed the case on April 17, but the groups pushing the initiatives are appealing to the 9th U.S. Circuit Court of Appeals.
Then there’s Outlaw Dirty Money, which raised roughly $500,000 in the first quarter, but recently “suspended” the campaign as courts consider challenges to initiative signature-gathering laws
The two education initiatives are trailing the pack in terms of raising money.
Invest in Education raised $230,000 this quarter, and has $170,000 remaining as of the end of March, and the Save Our Schools Act has raised a mere $1,500.
Foes of legalizing adult recreational use of marijuana in Arizona are trying to keep the issue from going to voters in November.
Legal papers filed in Maricopa County Superior Court contend the legally required 100-word description misled people into signing the petition to put the issue on the ballot. Issues range from the definition of “marijuana” to how the law would affect driving while impaired.
The lawsuit comes as a new survey Tuesday finds widespread support fort the proposal — with more than six out of every 10 likely voters saying they will support it if it is on the ballot. Pollster Mike Noble of OH Predictive Insights said the query of 600 likely voters found that just 32 percent say they’re definitely opposed.
John ShadeggBut the question of public support could be moot if former Congressman John Shadegg, representing Arizonans for Health and Public Safety, succeeds in convincing judges that the measure is not legally fit for a public vote.
The initiative, dubbed the Smart and Safe Arizona Act, would allow adults to possess up to an ounce of marijuana or five grams of concentrate. Possession of up to 2 1/2 ounces would be considered civil offenses, only becoming a misdemeanor on a third or subsequent violation.
Current law classifies possession or sale of marijuana in any amount as a felony. The only exception is for the more than 245,000 Arizonans who have a doctor’s recommendation that allows them to purchase up to 2 1/2 ounces of the drug every two weeks.
Shadegg said there are a lot of things missing from the description.
One, he said, is that it does not inform signers that they would be redefining marijuana to include not just the leaves and flowers but to extracted resin which is more potent and, under current law, legally defined as “cannabis.”
“The summary misled signatories and will mislead voters who may support the legalization of ‘marijuana’ but not the more potent forms of ‘cannabis,’ ” Shadegg wrote.
He also finds fault with the claim that the initiative, if approved, would require a showing that someone is impaired “to the slightest degree” to be convicted of driving under the influence of drugs.
The problem, Shadegg said, is that current law makes it a crime for someone to operate a motor vehicle with any amount of marijuana or cannabis, or even an active metabolite of the drug. This would add a requirement for prosecutors to also prove the person was impaired.
Shadegg also finds fault with a provision levying a 16 percent excise tax on the drug, saying it does not tell people that can never be altered except by taking the issue back to the ballot. And he said it also fails to point out that people can grow up to six marijuana plants for themselves without paying the tax.
Campaign chairman Chad Campbell called the lawsuit “ludicrous.”
He said that foes are trying to use the courts to make the arguments that should be made to voters. And Campbell, a former state legislator, said the 100-word description was never meant to be a point-by-point analysis of everything in the initiative.
Campbell also has a theory about why foes are trying to kill the measure in court.
“This is a desperate grasp from a group that can’t afford to run a campaign,” he said. “So they’re trying to do anything they can to keep it off the ballot and prevent the voters of Arizona from having their say.”
A similar measure in 2016 failed by about 4 percentage points amid an expensive campaign amid claims that adult access would lead to greater teen use and more accidents. Foes spent $6.1 million at the time, with much of that coming from the Arizona Chamber of Commerce and Industry.
This year, however, the business group may find its hands full — and its resources drained — by two other high-profile measures it hopes to kill. One would impose a surcharge on incomes above $250,000 for individuals to provide more cash for K-12 schools, the other would mandate pay hikes for hospital workers.
Attorney General Mark Brnovich wants state lawmakers to debate and enact a recreational marijuana program rather than risk an industry-crafted measure from becoming the law of the land at the ballot box.
And even Gov. Doug Ducey, who said he needs to see any legalization proposal before commenting, said he is concerned about the unchangeable nature of passing laws at the ballot box. But the governor said he remains personally opposed to adult use.
Brnovich told Capitol Media Services on Monday that the issues are far too complex to be left to a take-it-or-leave-it ballot measure. And he said those issues deserve more discussion than 30-second TV ads pushed by proponents and foes.
Arizona Attorney General Mark Brnovich (Photo by Katie Campbell/Arizona Capitol Times)
“Generally speaking, as a matter of public policy, the public policy makers, i.e., the Legislature, should step up and address issues so voters don’t have to do it via the initiative process,” he said.
But Brnovich said his key concern is that if marijuana for adults is legalized at the ballot it will be constitutionally protected against legislative fixes.
The idea is getting a skeptical response from the committee that is crafting what it hopes will be on the November 2020 ballot.
“I think this is more work than the Legislature has the capacity to tackle,” said Stacy Pearson, a consultant working with the group that is crafting the initiative. “This is complicated.”
More to the point, her organization does not intend to wait around until next year to see what state lawmakers craft, with petitions to get the necessary 237,645 valid signatures by July 2, 2020, likely on the streets as early as next month.
That potentially sets the stage for two competing measure on the 2020 ballot, one by initiative organizers and one adopted by lawmakers.
The Arizona Chamber of Commerce and Industry, which helped defeat a recreational marijuana program in 2016, is open to the idea of having the issue tackled by the Legislature.
“In order to be able to fix errors or address unintended consequences, adopting new policies via the regular legislative process is almost always preferable to the ballot box,” said spokesman Garrick Taylor.
That’s also on the governor’s mind.
“I think in any law there are unintended consequences,” Ducey told Capitol Media Services.
“Voter protection doesn’t contemplate that” he said. “And, yes, that does concern me.”
Yavapai County Attorney Shiela Polk speaks at a debate on cannabis at Arizona State University in Phoenix on April 29, 2015. (Photo by Gage Skidmore/Flickr)
But Yavapai County Attorney Sheila Polk said she will oppose any efforts to allow recreational use of the drug, whether at the ballot box or the Capitol.
“There is not a single successful model for legalization anywhere, whether by initiative or by legislative action,” she said.
“Once a state starts down the path of legalization, there is no turning back,” Polk said. “Good public policy should discourage, not encourage, drug use.”
Central to the debate is the Voter Protection Act.
In 1996 voters approved a law to allow doctors to prescribe marijuana and other drugs. The following year the Legislature effectively gutted the law to prevent it from taking effect.
So in 1998 the same group got voters to enact a constitutional measure which prohibits lawmakers from repealing or altering anything approved at the ballot box. It allows changes only with a three-fourths vote of both the House and Senate, and only when those changes “further the purpose” of the original measure.
“Recent history has shown that there are all sorts of unintended consequences when it comes to legislating via the initiative process,” Brnovich said.
For example, state lawmakers tried in 2012 to amend the 2010 medical marijuana law to keep students from possessing the drug on campus. But Brnovich was rebuffed by the Arizona Supreme Court when he sought to defend the law, with the justices saying that wasn’t what voters approved and the Legislature had no authority to change it.
The same, Brnovich said, will be true with whatever initiative organizers present to voters. He said there will be complex questions ranging from location, packaging and advertising to how the state deals with edible forms of the drug.
And then there’s the issue of people operating motor vehicles while under the influence of marijuana.
“What do you do about testing for THC,” the psychoactive ingredient in the drug, Brnovich asked, a question that includes not only how to test but what is considered impaired.
“I think that there are a lot of really serious questions that are a part of this conversation,” he said.
“It’s hard to do that sometimes when you are doing that via the initiative process and 30-second TV ads,” Brnovich said. “These are complicated issues that deserve intellectual debate.”
Doug Ducey
Ducey, who opposed the 2016 measure, said his views of recreational use haven’t changed.
“I don’t think any state ever got stronger by being stoned,” he said. “And we have existing laws that support medical marijuana.”
But the governor also said he fears what might be approved at the ballot box.
“I think in any law there are unintended consequences,” he said.
Anything approved by the Legislature can be fixed.
The governor was careful to say he was not trying to undermine the ability of people to craft their own laws.
“Of course I want to protect the will of the voters,” he said. “But I also think we have a legislative process for a reason, and that’s to adjust and improve policy when we can.”
Ducey said he wants to “know the specifics” before committing to a legislative solution.
One issue likely weighing on those who will decide whether to support a legislative solution is the chance that a 2020 initiative would pass.
The 2016 measure lost by a margin of just 51.3 percent to 48.7 percent. And that was with opposition from some supporters of medical marijuana who claimed that measure was designed largely to benefit existing dispensary owners.
Since then several states have legalized the adult use of marijuana, either through legislative or voter action. And a telephone survey in Arizona earlier this year showed 52 percent of those questioned in support of recreational use.
Pearson told Capitol Media Services the cash will be there to mount the campaign.
“The funders have committed the resources to win,” she said.
Editor’s note: The second paragraph in this story and headline were revised to clarify that Gov. Doug Ducey is not taking a position on legalization, but that he is concerned about the ballot route.
The marijuana sellers who wrote Proposition 207 had the marketing all figured out. This time, they would give the ballot proposition a respectable sounding name, tweak a couple of details without really limiting their potential market, and spread the word that this recreational marijuana proposition was “Smart and Safe.”
Polling indicated their ploy was working. Polls consistently showed Arizona voters would likely support such a measure. Then, the details began to emerge. Voters learned Prop 207 does far more than decriminalize recreational marijuana. The 17-pages of changes to Arizona laws would affect drivers, teens, kids, employees and employers, landlords, HOAs, neighborhoods and more. Suddenly, this is no longer about just smoking weed and minding your own business.
The latest polling shows a significant drop in support for Prop 207. One poll shows support at just one-percentage point above opposition, at 46% and 45% respectively. Another poll puts likely voter support at just 47%.
The marijuana industry wrote a self-serving proposition that puts kids and teens in harms way by allowing THC-laced candies, gummies, cookies, and other snacks. Then, gave themselves the ability to market those items on all platforms that teens frequent, including social media.
They put a deceptive limit on candies and snacks that appeal to kids, while still packing a full 10 servings in one candy bar. Other forms have no limit at all. For example, concentrates used in vape pens can contain up to 100% THC.
Lisa James
Prop 207 legalizes recreational marijuana for adults only. Every state that legalized it, did so for adults only, and still, a lot more teens use it.
Perhaps much of the decline in support for Prop 207 comes from the clear increased danger on the roads. The proposition eliminates current law prohibiting driving with impairing THC in one’s system. Without replacing that standard with any other clear line of impairment, it’s left to police and courts to hash out. Prop 207 makes using marijuana a statutory right, making it more difficult to prosecute marijuana impaired drivers.
The proposition also doesn’t address the immediate risk to others on the road, because there is still no reliable roadside test for marijuana impairment like there is for alcohol. Breathalyzer tests can gauge alcohol levels and quickly determine if the driver reaches the clear standard of impairment set by state officials. Police can then remove the drunk driver from the road before someone gets killed. That level of precaution is alarmingly missing from Prop 207.
States that passed similar initiatives to legalize recreational marijuana experienced a significant increase in marijuana related fatal crashes. In Colorado, the number doubled. That isn’t surprising when nearly 70% of marijuana users there admit to driving stoned, and almost a third, daily.
Prop 207 protects the marijuana industry, while setting up other employers for costly lawsuits, high turnover, and dangerous working conditions. Under the proposition, employers cannot take adverse action against employees because they exercise their right to use marijuana. And, although they can prohibit marijuana use at work, there is nothing stopping employees from using off-site, and then going to work at a daycare, elderly care facility, or worksite.
The measure also ties the hands of landlords and HOAs, rendering them powerless against the new right to grow and use marijuana. There is no recourse for a homeowner or renter when a next-door neighbor grows as many as 12, 12-foot tall marijuana plants. There is no recourse when a bag of high potency marijuana is delivered to the porch next-door as your children play outside.
Under the guise of economic benefit to the state, marijuana sellers whet the appetites of many underfunded programs. But, Prop 207 caps the tax at 16%, regardless of the cost to the state, meaning it will not pay for itself, much less make the state money. Colorado pays $4.50 for every one dollar in marijuana revenue.
Prop 207 is not a moneymaker. It allocates no funds to k-12 education. It would bring more danger to our roads, harm to our kids, cost and headache to our employers, and Arizona’s Voter Protection Act would prevent lawmakers from fixing any problems that arise. As voters learn all this, it is no surprise Prop 207 is sinking in the polls.
Lisa James is the Chair of Arizonans for Health and Public Safety. Their website is www.no207az.com.
Arizona is on the verge of a tremendous victory for public safety.
This election, voters will be asked whether to legalize and regulate marijuana for adults. If we make the right choice by voting Yes on Proposition 207, and I believe we will, our communities will benefit from a wiser use of criminal justice resources.
There are few experiences more frustrating to a good police officer than enforcing laws that simply do not make sense.
Whether a responsible adult is using marijuana should be of no concern to the officers entrusted with apprehending dangerous criminals and investigating serious crimes. In fact, it’s insulting to law enforcement and insulting to the people of a free society.
Whether children are using marijuana is another matter, but that is an issue solved by parents and mental health professionals, not by police.
J. Gary Nelson
Two-thirds of Americans, including 55% of Republican voters, support legalizing marijuana for adults. The federal government has not risen to this demand, so states have taken matters into their own hands. But, when policy is far removed from public opinion — especially in states like ours where marijuana is still illegal — backlash is inevitable.
People stop trusting the government and the rule of law, and police are the first to feel the animosity because we interact with the public every day. As we make marijuana arrests, our work gets much more difficult, and the people we serve become less engaged in fighting real crime. They stop reporting crimes, and they certainly have no interest in helping us solve them. Marijuana prohibition alone has destroyed relationships that police need to do our jobs. I’m just one of many police officers who look back on the marijuana arrests we made and wonder, “Why on Earth are we doing this?”
Humans have used marijuana for centuries, so it would be ridiculous to think we could eliminate the demand. Since we cannot control demand, it’s smart to regulate the supply so that consumers are protected from shady dealings and contaminated products, communities benefit from job creation, and jurisdictions receive tax revenue for public projects.
People arrested for marijuana face steep fines, loss of housing, barriers to employment, loss of parental rights, and limited educational opportunities. Despite the consequences, millions of Americans still use marijuana regularly. We have to admit that whatever good we thought would come of this policy isn’t achievable. On the other hand, when marijuana is sold in the legal market, marijuana arrests drop dramatically which saves taxpayer money and keeps innocent people out of the justice system. This makes far more sense.
Childproof packaging and age restrictions on purchases also protect young people, but both of these are impossible when marijuana is illegal. It’s not easy for police to track down a seller with no business license, no contact information, and no address. Instead of sending police on a wild goose chase, just put marijuana in a secure storefront owned by licensed professionals. At least then we can send undercover officers and inspectors to ensure health and safety compliance. If we know where the goose lives, there’s no need for a chase.
By regulating marijuana, we also let police focus on real crimes. In 2018, the clearance rate for rape cases in Phoenix was just 11%. Marijuana arrests distract police from the crimes that are actually hurting people. This is tragic, and we must not let it continue.
Legalization and regulation is the answer. There’s simply no other option that shrinks the underground market, improves the safety of our communities, and helps to repair the broken relationships between police and the people we serve. I am proud to vote Yes on Proposition 207.
Det. Sgt. J. Gary Nelson (Ret.) spent 27 years as a police officer in Arizona. He’s now a representative of the Law Enforcement Action Partnership (LEAP), a nonprofit group of police, judges, prosecutors, and others in criminal justice who promote evidence-based public safety solutions.
Voters who signed petitions to legalize the recreational use of marijuana were not misled, Maricopa County Superior Court Judge James Smith ruled late Friday, and the measure can be on the ballot.
In a 15-page ruling, Smith, a Gov. Doug Ducey appointee, rejected claims by Arizonans for Responsible Drug Policy that the 100-word summary on the initiative omitted principal provisions and was misleading.
“At 100 words, the summary also cannot include everything,” he wrote. “that is why the full initiative must accompany the petition.”
And Smith chided foes for suggesting that voters might not understand all the implications of what the measure would do, things like changing laws on advertising and altering laws on driving under the influence of drugs.
James Smith
“This initiative is plain: It wants to legalize recreational marijuana,” the judge wrote.
“That is the principal provision,” he continued, the key thing that has to be in the description. “It is unlikely electors signing these petitions would be surprised by cascading effects of legalizing a formerly illegal substance.”
Lisa James, who chairs the group trying to keep the measure off the November ballot, said an appeal is likely.
The measure would allow adults to possess up to an once of marijuana or 12 plants. It would impose a 16% tax on sales that supporters say would generate about $300 million a year for community colleges, public safety, health programs and for road construction and repair of roads.
But James said the summary does not provide some crucial details, like the fact it would legalize not just marijuana in its leafy form but also more concentrated resins.
Smith, however, pointed out that resin is part of the marijuana plant under Arizona law, saying he doubts that voters are likely to be confused since resin is legal under the state’s existing medical marijuana law.
James also said it’s not made clear that if the measure becomes law that people could legally drive with metabolites of marijuana in their system, with the test being whether they were “impaired to the slightest degree.” Foes said that fails to disclose that people actually would be able to drive legally with metabolites of marijuana in their body, essentially what’s produced by the body as the chemical breaks down.
Smith called that irrelevant, pointing out court cases which already say that medical marijuana patients with metabolites in their blood, evidence of earlier usage, can’t be convicted of driving under the influence of drugs absent a showing of impairment.
“An elector signing a petition to legalize recreational marijuana would more likely be surprised if the initiative did not decriminalize driving with any amount of metabolite in one’s system,” Smith wrote, just as people can’t be convicted of drunk driving simply because there are metabolites of alcohol in their blood.
Smith was no more impressed by arguments that legalizing marijuana for adult use might result in minors being exposed to advertising for the drug.
“Voters will not be surprised that sellers may advertise a now-legal product if the initiative passes,” the judge said. He said that’s no different than other adult products, “from medical marijuana billboards to condom commercial to ubiquitous beer advertisements.”
Anyway, Smith said, sales to minors would be prohibited and the initiative bars selling or advertising marijuana products that imitate children’s food or drink brands.
The judge stressed that it is not his job to decide whether the initiative is good or bad. And he said many of the objections of foes are “policy issue best left for voters or elected representatives.”
Arizona adults could be purchasing legal weed for recreational use by the end of the week.
State health officials began accepting applications Tuesday to run some of the more than 120 recreational sites that voters agreed to allow in November to sell marijuana to anyone.
On paper, the state has up to 60 days to review and approve. But agency spokesman Steve Elliott told Capitol Media Services it’s not going to take anywhere near that long.
“Our goal is not to be a barrier,” he said.
So could licenses be in place and sales begin this week?
“We’ll see,” said Elliott.
The process should be fairly simple as the initial batch of retail sales licenses will be going to shops already set up to provide medical marijuana. These are places where the owners and the employees already have been vetted by the state.
But it’s not automatic.
Attorney Ryan Hurley who is with Copperstate Farms, said there are technical issues. For example, those people who are licensed as a “dispensary agent” under the medical marijuana law now need to apply to be a “facility agent.” That means additional paperwork.
Hurley said, though, he sees no reason why legal sales won’t start next week — or even as early as this weekend.
All this is a direct result of passage of Proposition 207. Approved by a 3-2 margin, it allows anyone 21 and older to possess up to an ounce of marijuana or six plants.
Officially speaking, the law took effect last month after the election results were formally certified. So, as of early December, no adult could be arrested for having an ounce of marijuana or less.
Only thing is, there is not yet a place where Arizonans who do not already have a card as a medical marijuana user can legally purchase it.
That is what will change once the state approves the new recreational licenses, making flowers, edibles and other mixtures as available as a head of lettuce.
Sort of.
It still requires presentation of a state-recognized identification card proving age, though that does not have to be from Arizona.
And, of course, there’s that one-ounce limit.
Still, Hurley acknowledged, there are ways around that latter restriction for those who are so inclined. He said nothing in the law tracks individual sales to the point that one dispensary can find out if another one just sold an ounce of the drug to the same buyer.
“The onus is on the individual,” said Hurley.
And, of course, possession of more than an ounce remains illegal, though anything up to 2 1/2 ounces is a petty offense, subject only to a fine.
The new law creates a fiscal conundrum of sorts for the state’s nearly 300,000 medical marijuana users: Should they keep their state-issued cards?
Most dispensaries are expected to charge the same amount, regardless of whether the drugs are being sold for medical or recreational use.
The new law, however, requires imposition of a 16% excise tax on recreational sales. And assuming a price of $200 an ounce — a figure that could vary widely — that additional fee amounts to $32.
So that makes sales to medical marijuana users cheaper.
But Hurley said it’s not that simple.
Anyone wanting a medical marijuana card first has to get a diagnosis from a doctor that he or she has a condition for which the drug can be recommended. These range from glaucoma and AIDS to severe and chronic pain.
Hurley figures an office visit can set someone back about $150.
Then there’s the requirement for an identification card issued by the state, which carries its own $150 biennial fee.
“I’m guessing most people that have their cards will keep them until they expire,” he said. “Unless you’re a real heavy user, some people will probably not renew them.”
In either case, customers should come armed with cash.
Marijuana remains illegal under federal law. And banks which are subject to federal regulation have been unwilling to accept credit card transactions from dispensaries.
Taxes aside, there is one other advantage to keeping a medical marijuana card. It allows individuals to purchase up to 2 1/2 ounces every two weeks, versus being limited to possession of no more than an ounce at any one time.
Hurley’s Copperstate Farms which operates the four Sol Flower medical marijuana dispensaries are hoping to be among the first to open their doors to recreational users. He said they submitted their applications on Tuesday.
Illustration of a green ballot box with a marijuana leaf
Nearly three years after a narrow defeat at the polls, a new attempt to legalize recreational marijuana is underway.
Backers of the initiative, many of the same Arizona medical dispensary owners who supported the 2016 ballot measure, have incorporated lessons learned not just from their 2016 defeat, but from laws and initiatives that passed or failed in other states.
The result: The Smart and Safe Arizona Act, which mirrors the 2016 Campaign to Regulate Marijuana Like Alcohol in some ways, but in others is completely different.
A cap on dispensary licenses
Once again, existing medical marijuana dispensaries would be given a leg up when it comes to obtaining licenses to begin selling recreational weed.
The 2016 initiative limited the number of licenses the state could issue for recreational marijuana sales to about 150 dispensaries – a figure roughly equal to 10% of the number of liquor store licenses in Arizona. Of those licenses, preference would have been given to existing medical dispensaries that applied for a recreational license.
Dispensary owner J.P. Holyoak said at the time that preference was given not to protect the business interests of medical dispensaries, but to ensure new recreational sales would be conducted by those familiar with the industry and in good standing with the Arizona Department of Health Services.
The 2020 initiative takes a similar approach, though a cap on the number of recreational dispensary licenses is linked not to liquor stores, but to pharmacies. The proposed law states that the Department of Health Services may issue no more than one recreational marijuana license for every 10 licensed pharmacies, drug manufacturing facilities or wholesaling facilities in the state – put another way, any place “in which or from which drugs are sold, compounded, dispensed, stocked, exposed, manufactured
Stacy Pearson
or offered for sale.”
Stacy Pearson, a campaign consultant for the Smart and Safe Arizona Act, said that’s exactly how DHS currently calculates the number of medical marijuana licenses it issues. The state has issued 131 medical licenses so far, she said, meaning there would be roughly 131 licenses for recreational sales available if the initiative is approved.
“For ease of management at DHS, we kept the ratio the same,” she said.
Of those recreational licenses, preference would be given to two kinds of applications, referred to as “early applicants” in the initiative. The first are registered nonprofit medical marijuana dispensaries in “good standing” with the Department of Health Services.
If approved, those applicants would be required to co-locate, meaning they’d sell recreational and medical marijuana out of the same facility, Pearson said.
What that means is double the licenses won’t double the number of physical dispensary locations.
Most current medical licensees are expected to apply for recreational licenses as well, Pearson added, though it’s unclear exactly how many will. Of the 131 available medical licenses, roughly 115 are currently operational.
The second applicants are those who seek to operate recreational sales in counties without much in the way of medicinal marijuana sales to begin with, meaning counties “with fewer than two registered nonprofit medical marijuana dispensaries.”
Where the tax revenue goes
The Smart and Safe Arizona Act adjusts which areas of government would receive funding from a 16% excise tax on sales of recreational marijuana.
In 2016, the tax revenue was predominantly allocated to education. The Campaign to Regulate Marijuana Like Alcohol sought to place a 15% excise tax on retail sales of marijuana.
While a portion of those funds would have first be used to implement and enforce the new marijuana laws and regulations, a bulk of prospective revenues were earmarked for public schools: 40% would have helped pay for school construction and maintenance, and another 40% would have been dedicated to funding full-day kindergarten programs. The remaining 20% would have gone to DHS to fund substance abuse awareness programs.
Funds raised by the latest initiative would be split among a wider variety of state agencies.
Community college districts would receive 31.4% of the funds, about half of which would be distributed evenly among all districts, approximately half would go to community college districts and provisional community colleges in proportion to their enrollment, and a small percentage would be divided equally among provisional community colleges.
Another 31.4% would be allocated to police, fire departments, and sheriff’s offices. Local infrastructure projects would receive 30% of revenues, with those dollars earmarked for the state’s Highway User Revenue Fund.
In addition, 7% would go to a new Justice Reinvestment Fund, which includes substance abuse awareness and prevention programs, reducing the prison population and creating a program to identify those who are eligible for expungement, and the remaining 0.2% would go to the Attorney General’s Office.
The campaign estimates this initiative will bring in around $300 million in tax revenue, more than double the figure estimated during the 2016 campaign.
Packaging and advertising regulations
One area not addressed by the 2016 initiative was the packaging and marketing of marijuana products, particularly edibles. Three years ago, the anti-marijuana campaign focused on products like marijuana gummies and candies to drum up fear that kids would not just have easier access to marijuana if it were legalized recreational, but that kids would be tempted by a drug designed to look appealing to them.
The No On Prop 205 campaign in 2016 placed signs throughout Maricopa and Pima counties that featured pictures of edible marijuana they claimed were “virtually indistinguishable from popular store-brand, drug-free candy.”
The 2020 initiative attempts to head off that campaign tactic by regulating the packaging and advertising of marijuana products. Broadly, the proposed law says that marijuana products may not be packaged or labeled “in a false or misleading manner.”
More specifically, dispensaries would be barred from producing and selling marijuana products “that resemble the form of a human, animal, insect, fruit, toy or cartoon” – for example, marijuana gummy bears.
The proposed law also specifically bars the sale of marijuana products with names, not just shapes, “that resemble food or drink brands marketed to children.” As for advertising, dispensaries would be required to specifically highlight themselves as the company responsible for an ad, and must ensure that their advertising efforts are targeted only to adults 21 and older.
Pearson said the inclusion of advertising and packaging restrictions is “not about the campaign as much as it is about good policy. It’s the right thing to do… There’s no interest in the industry to market products to kids.”
She noted that the language was inspired by other states that legalized recreational marijuana without such restrictions aimed at protecting children.
“Dispensary owners are parents too. They have no interest in having products that can be confused with products in Circle K,” Pearson said.
Employer rights
One of the most potent arguments against the 2016 recreational marijuana initiative was that it would hamper employers’ ability to discipline or fire a worker who uses marijuana. The 2016 initiative, Prop. 205, did not address that concern and ultimately failed by roughly 3 percentage points.
Having learned their lesson from that failure, backers of the Smart and Safe Arizona Act have attempted to add air-tight language to ensure that employers can continue to have drug-free workplaces, despite legalization.
Where the 2016 initiative did not require employers to allow or accommodate marijuana consumption, the 2020 initiative explicitly spells out that it “does not restrict the rights of employers to maintain a drug-and-alcohol-free workplace.”
Demitri Downing, the founder of the Marijuana Industry Trade Association, said in March that if the 2020 initiative did not explicitly say employers will maintain all rights and control, he would not support it. Now that the language has come out he says that he likes the way the initiative handled employer protections, and he thinks the voters should as well.
“One of the greatest obstacles that employers deal with is psychological issues, substance abuse issues like caffeine and alcohol, and having that protection is paramount,” Downing said. “The writers got it right and anybody who would argue otherwise is wrong.”
In 2016, various chambers of commerce slammed the initiative as anti-business, with the Tucson Hispanic Chamber, for example, calling the initiative a “tort-lawyer’s dream” and arguing that employers could be sued if they refuse to hire someone who tests positive for marijuana.
Garrick Taylor
Garrick Taylor, a lobbyist for the Arizona Chamber of Commerce and Industry, said in May that was one of its biggest concerns for a new initiative. He said if the initiative drafters properly addressed the issue, it would help the chamber to possibly not oppose it. In 2016, the chamber spent roughly $1.5 million in opposition to legalization. Still, he said that does not mean the chamber would support it either.
“In light of our stiff opposition in 2016, the business community will take some serious convincing,” Taylor said, adding that the chamber is “especially concerned about a voter approved effort that would be nearly impossible to amend going forward.”
But whether the language in the new initiative assuaged the chamber’s concerns is still unclear. Taylor recently told Yellow Sheet Report that the chamber is waiting for everything to go through the Legislative Council before it commits to any stance.
Expunging criminal records
One portion of the initiative likely to attract new voters in the years since the last attempt failed is the inclusion of record expungement.
There was no mention of expungement of criminal records in the 2016 language. And while there isn’t an actual database that can be used to figure out the exact number of people who would qualify for the program, Pearson estimated roughly 150,000 Arizonans would be eligible.
The expungement process would not go into effect until July 12, 2021, and would be for anyone who was arrested, charged, convicted or sentenced for possessing, transporting or consuming up to one ounce of marijuana; possessing, transporting or cultivating up to six plants for personal use, or up to 12 plants per household with more than one adult; or possessing, transporting or using paraphernalia.
However, if the prosecuting agency involved can determine the request for expungement has genuine disputes of fact about whether the petition should be granted, the petition for expungement may be denied.
Future amendments
The Smart and Safe Arizona Act also includes an olive branch of sorts to the legislators, one not contemplated in 2016.
The initiative proposes a list of legislative actions that, were the Legislature to try and amend recreational marijuana laws in the future, would be considered OK in accordance with the Voter Protection Act.
The Voter Protection Act is infamous, particularly among GOP lawmakers who use it as a frequent critique of the initiative process, claiming they are unable to amend voter-approved laws even with the best of intentions because their hands are tied by the that law.
Amending voter-approved laws requires a three-quarters majority vote in both the House and Senate, but the Voter Protection Act also requires that those amendments further the intent of the voter-approved law that’s being amended. To assuage those concerns, the 2020 initiative stipulates that “the People of Arizona declare” that certain acts by the Legislature would “further the purpose” of the law.
The section acts as something of a green light for future legislators to make certain amendments, like reducing or eliminating certain offenses or penalties in the proposed law and increasing the amount of marijuana an individual can lawfully possess.
Pink And Blue Gummy Bears
“We’re trying to give the Legislature as much flexibility as possible for this initiative to evolve,” Pearson said.
The list also contemplates a world in which the federal government passes its own laws to regulate legalized marijuana.
Lawmakers could amend the Smart and Safe Arizona Act “to align more closely with federal laws and regulations in the event that marijuana is legalized or decriminalized by the federal government.” That comes with the caveat that those new laws and regulations can’t be more restrictive or punitive than the law approved by voters.
“The funders of the initiative and the industry itself don’t claim to know every answer,” Pearson said. “Certainly as fast as this industry is evolving, we know there’s things that will need to be addressed.”
Including specific language regarding the Voter Protection Act “speaks to the committee’s intent to make good policy,” she said.
On Nov. 3, 2020, Arizona residents voted in support of Proposition 207, the Smart and Safe Arizona Act, that has been termed “Recreational Marijuana.”
When we think of the term recreation, synonyms like fun, enjoyment, and pleasure come to mind.
However, Smart and Safe is much more profound, going beyond what the term recreational marijuana would suggest by focusing on the repair of community, political, social, and economic issues.
Smart and Safe expands the previously limited legal use of marijuana for severe and specific medical conditions to include all responsible adult use.
The intent was not just to restore civil rights and freedom of choice but more broadly to address major consequences of cannabis prohibition – prison overcrowding with nonviolent offenders, economic and social barriers stemming from a felony conviction, racial and economic disparities in the justice system, friction between our law enforcement and communities, disallowance of a safer alternative to alcohol and tobacco use, and lacking resources for treatment of substance abuse.
William Troutt
In this light, the phrase recreational marijuana use does not seem to do justice to this landmark moment in history and our aspirations. However, when you look deeper at the origins and uses of the word “recreation,” it starts to feel quite appropriate. The term recreation has its foundation in health and healing. Its uses have included restoration, curing of a person, recovery from illness, to invigorate and to refresh. And now with Smart and Safe, industry and activists have found common ground in cannabis to address deep divisions and imbalances between our government, laws, communities, and people, with the promise of re-creation to restore unity, heal inequalities, invigorate economics, and revitalize faith in democracy.
I have been on the front line of this reconciliation in Arizona, first with the 2010 Arizona Medical Marijuana Act and now with the 2020 Smart and Safe Arizona Act. As with many others, my family and my life have been deeply impacted by the war on drugs. Now, I am seeing a path to recovery. It is being built through cooperation, understanding, tolerance, unity, medicine, and recreation.
I joined a start-up company in 2012, Harvest Health & Recreation. They asked me to share my knowledge of cannabis culture and botanical medicine, and to serve as an advocate for patients, caregivers, and the communities we serve. As Harvest’s medical director for the last eight years, I have collaborated with industry leaders, government representatives, business stakeholders, and medical organizations to advance cannabis programs and assist patients and our communities in their quest for safe, informed cannabis access. Personally, I have witnessed medical success stories, courage, and unity, which have rejuvenated my hope and optimism for the future. For thousands of years cannabis has been used for food, fuel, fiber, medicine, spirituality/religion, health, and leisure. And now in Arizona we can appropriately call its use recreation. I, for one, believe that this expanded access to legal cannabis for responsible adult “recreational” use – by any definition – is healthy for our communities.
Dr. William Troutt is director of medical education for Harvest Health & Recreation.
In this Nov. 4, 2010, file photo, a marijuana user poses a joint over some ground marijuana in Tempe, Ariz. Arizona voters will decide whether the state joins nearly a dozen others across the nation that have legalized recreational marijuana when they head to the polls on Election Day, Tuesday, Nov. 3, 2020. (AP Photo/Matt York, File)
Polling data and an expensive media market paint a gloomy picture for legalizing recreational marijuana at the ballot this year.
What seemed like a sure thing months ago, may not be so as voters are already filling out ballots at a record pace. Arizona narrowly defeated an effort to legalize recreational marijuana in 2016, but that effort even had ardent supporters against it. Four years later, the backers covered all their tracks, began collecting support months earlier than usual and were raking in millions of dollars from medical marijuana dispensaries to get the Smart and Safe Arizona Act on the ballot.
After more than 420,000 signatures – and the impact of a pandemic – it survived two court challenges and became one of two ballot propositions voters have the opportunity to approve or shoot down. Proposition 207, as it’s now known, would allow adults 21 years old and older to possess up to one ounce of marijuana, cultivate up to six plants per home and would create a path for record expunging charges of marijuana possession. It also comes with an excise tax of 16% that would go to funding various areas. But for some reason, advertising has been dormant for the effort.
The post-primary election campaign finance report indicates Smart and Safe Arizona was left with only $16,000 on hand after spending millions of dollars to get on the ballot.
The highest fundraising mark came between January 1 and March 31 – more than $1 million dollars almost entirely from the dispensaries.
But now with Arizona being a battleground state for the U.S. Senate and presidential races, the price to buy a TV ad has skyrocketed.
Phoenix alone makes up for a high percentage of the state’s electorate, inside of Maricopa County, which accounts for roughly 60% of the vote, and the city is considered the most expensive media market in the entire country.
In an average election cycle, Phoenix’s market would be between $700 and $800 in cost per point (how television advertising is measured). Right now, it’s skyrocketed to $2,053 cost per point. Campaigns would need to spend about $4 million for prime spots.
While the 2016 effort had a well-funded opposition campaign due in part to Republican Gov. Doug Ducey and the Arizona Chamber of Commerce and Industry, the chamber as well as other top contributors are no longer a factor this time around. The Ducey and the chamber still oppose the effort, but it will not put any money into the campaign. Instead it’s working to defeat Proposition 208, a proposal to tax the state’s highest earners, and to keep the Legislature in Republican control.
Smart and Safe’s only opposition comes in the form of Arizonans for Health and Public Safety, a weak-funded effort spearheaded by the Center for Arizona Policy and chaired by Republican consultant Lisa James.
The political action committee was left with roughly $21,000 on hand after the August primary. Neither campaign had third quarter numbers available in time for this report.
Even without the spending, Smart and Safe has not been able to even rely on polling in its favor with most polls showing it under 50% support, something that is usually worrisome for campaigns this close to an election on a “yes” or “no” question.
Recreational marijuana lost with 48.7% of the vote in 2016.
Polls are not the end-all-be-all for political campaigns, but a recent survey shows Prop. 207 gaining support.
A new Monmouth poll released on October 15 shows increased support for legalization at a margin of 56% in favor to 36% opposed. A September Monmouth poll had 51% in favor, 41% opposed and 8% undecided.
The first poll came out before Arizonans began to receive their ballots, but at the time of the poll James was delighted at the results.
“I would definitely be concerned if the yes campaign was over 60 at this point, but they are not,” she said. James thinks the dwindling support for legalizing weed is due to people paying attention to “what’s in all 17 pages” of the proposal and understanding that if approved, it’s virtually untouchable.
She was referring to the Voter Protection Act, which prevents any amendments or modifications from the Legislature –– unless they further the intent of the initiative, and any changes would need to have three-fourths support in both chambers, which becomes more rare as politics becomes more divisive.
“With voter protection, we’ll be locked into this for the foreseeable future and these guys have just gone, once again, a step too far,” James said.
Stacy Pearson, who is running the Smart and Safe campaign, said she was not worried, adding that the campaign’s internal polling has been in the high 50% range for almost two years.
“We’re confident that the number is higher than 51. It is a relatively small sample size and I don’t know how it’s weighted,” she said. “But certainly Monmouth’s got a great reputation so we’re taking a close look at it.”
Monmouth’s new poll surveyed 502 likely voters that identified more heavily as independent followed by Republican and then Democrat, which could have affected its results. It also had a plus-minus 4.4% margin of error. Monmouth adjusts the results for a low and high turnout predictor putting the support between 54 and 56%.
Other polls, like Suffolk University/USA TODAY had Smart and Safe with just 45.6% in support compared to 34.2% opposed, but it’s undecided voters were at an unusually high 19%.
As a renewed effort to legalize marijuana for recreational use in Arizona ramps up, substantial issues identified by state auditors still hover over the existing Medical Marijuana Program and solutions aren’t quite as clear as some might suggest.
Under the Arizona Medical Marijuana Act approved by voters in 2010, the state Department of Health Services is responsible for operating the state’s program. Industry insiders have given the department credit for its work on an industry that is still new, but a state audit released on June 19 was less than flattering.
Among the findings, auditors noted that state inspectors haven’t been inspecting “infusion kitchens” producing marijuana edibles for ongoing food safety compliance. Those kitchens are licensed as food establishments, which can be subject to unannounced inspections. But they’re typically housed within dispensaries, which are licensed separately, and state law does not allow DHS to inspect marijuana facilities without providing advance notice.
But whether the state’s failure to perform kitchen inspections is due to dubious business practices, bureaucratic malaise or something else entirely is not clear.
SERENDIPITOUS
DHS Director Cara Christ told the Arizona Capitol Times state inspectors tasked with enforcing the rules of AMMA have been unable to witness an operating kitchen to date.
Explaining why exactly seems to be as difficult as actually performing the inspections.
According to the audit, DHS “does not inspect infusion kitchens for ongoing food safety compliance because facilities typically close” when inspectors arrive for scheduled visits.
Cara Christ
Christ said dispensaries have claimed the kitchens are simply not open.
And Arizona Dispensaries Association Executive Director Tim Sultan said, “It’s just serendipitous that they happen to be showing up and the lab’s not operational.”
The latter didn’t sound entirely implausible to Stacy Pearson, a campaign consultant working on a 2020 ballot measure to legalize marijuana for recreational use. The effort to usher in recreational marijuana at the ballot is expected to launch by the end of July.
Pearson said the infusion kitchens aren’t typically daily operations. They churn out pre-packaged marijuana edibles, like brownies and gummies, that have a shelf-life like any other mass-produced goodie. That means they don’t need to run all the time.
Still, she said figuring out a way to get dispensary inspectors into facilities when they’re operating shouldn’t be an issue – it’s simply a matter of knowing the production schedule.
“The industry itself wants that to happen. That most certainly should be happening,” she said.
Steve White, the president of Harvest Health and Recreation and one of the movers behind the 2020 ballot initiative, agreed DHS should be able to inspect kitchens and contends they are. He said he knows a handful of operators whose kitchens have been inspected.
“They can come see ours if they want to,” White said, noting his kitchen would operate for just two days a month.
And White suspects that inspectors’ ability to do their job will become clearer. That’s because the state audit came at an unintentionally good time, Pearson said.
The campaign behind the 2020 initiative hopes to have the language circulating by the end of July, but it’s not yet complete. Pearson said that means they have time to “do better, to get better language.”
“We’re hoping to clarify some of that vague language from AMMA and give DHS all of the tools it needs and all of the authority it needs to solve any of the problems that came up in the audit,” she said.
That includes the authority DHS needs to inspect infusion kitchens
“There’s no reason that a kitchen that produces THC-infused products should be regulated any differently than a kitchen that produces sugar-infused products,” she said. “Whatever we need to do to clarify DHS’s authority on that, we’re open to doing that.”
SIMPLE SOLUTION
The audit made the solution sound simple. Auditors recommended DHS conduct unannounced food safety inspections of infusion kitchens similar to ones done for other licensed food establishments.
The current opinion of the state Attorney General’s Office has been that DHS cannot follow that recommendation without violating the law for dispensary inspections.
Steve White
DHS would need explicit statutory authority to perform unannounced inspections, approval it could get from the Legislature with a three-fourths vote. The AMMA is shielded from legislative amendments under the Voter Protection Act.
White said that’s a broad proposal, but generally speaking, the industry is supportive of oversight.
“Of course, in theory, we would be supportive of that,” he said when asked specifically about unannounced kitchen visits.
And Sultan said his members would not stand in the way of such legislation, but would rather commit to complying with the rules whatever the government decides those might be.
Democratic lawmakers are on board, too.
House Minority Leader Charlene Fernandez, D-Yuma, said her caucus would happily help get the three-fourths vote necessary to close the loophole, noting that they supported new marijuana testing requirements, and don’t want to put medical marijuana patients’ health at risk as the audit suggested.
Christ pointed out that a new law eventually will give her department the authority to inspect everything that’s being sold out of state-licensed dispensaries. And that includes not just the unprocessed leaves and flowers but anything made from those items, including those coming out of kitchens.
“I don’t know that it’s going to help us with the inspection piece, because it just doesn’t touch that,’’ she said. “But what it will do is allow for analysis of the product before it’s used.’’ And that, she said, is more than exists now.
White contested that point, too.
“Harvest Health and Recreation has spent millions of dollars on testing since the inception of the company. Most responsible operators do not sell untested products,” he said. “The issue is one of regulatory oversight rather than results-based analysis.”
REASONABLE NOTICE
File photo of Rep. Sonny Borrelli, R-Lake Havasu City (Cronkite News Service Photo by Jessica Boehm)
For those keeping score: Democrats have said they’d support a bill to close the kitchen inspection loophole, while industry insiders have said they wouldn’t resist such legislation, and those working on a campaign to legalize marijuana for recreational use believe inspectors’ authority could be clarified in new language possibly bound for the 2020 ballot.
But that’s not enough to convince everyone there might be a path forward.
Sen. Sonny Borrelli, R-Lake Havasu City, remains among the skeptics.
Borrelli noted he already had a bill to close the inspection loophole.
Senate Bill 1222 would have removed language in the Medical Marijuana Act stating that the department must give “reasonable notice” before inspecting a dispensary. Instead, the bill would have required dispensaries be open to inspection during business hours. That bill would have applied to dispensaries themselves, not just the kitchens.
“The problem is that reasonable notice,” Borrelli said. “DHS can go into everything from a Burger King to an abortion clinic unannounced – but not a dispensary.”
And he was both outraged and dubious of Democrats’ and industry folks’ pledge to support a fix in the wake of the state audit, noting that when his proposal came up in the Senate, not one of them supported it.
“Democrats killed the bill,” he said. “The Medical Marijuana Act was written by the industry to protect the industry. … The industry was the one that blocked any kind of reform.”
That “maybe they won’t be obstructing any kind of medical marijuana reform” moving forward is good, he said, because he’ll be running his bill on unannounced dispensary inspections again.
And he scoffed at the idea that he might try instead to pass a watered down version focusing on kitchen inspections, for which there appears to be support.
He’s not actually convinced those who stood against his bills before won’t fight back, even if they’re now saying otherwise.
“They said they’re willing to learn and listen and work with somebody? Um, it took us three years to finally get some type of reform through,” Borrelli said, referring to the new marijuana testing requirements. “So, you know what? I’ll believe it when I see it.”
Howard Fischer of Capitol Media Services contributed to this report.
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