13 Things You Might Not Know About California’s Prop. 64
September 30, 2016
If you’re a California voter, you probably haven’t read the whole text of Proposition 64, the Adult Use of Marijuana Act. You should—here it is—but you won’t. So I did.
You know the basics: Prop. 64 would legalize cannabis under state law for adults 21 and older. It would designate state agencies to license and regulate the industry, set up a system of taxes (medical patients are exempt from some), and set restrictions on things like packaging and marketing. Products would be tested for cannabinoids, terpenes, pesticides, and foreign contaminants. And people who’ve been convicted of cannabis-related crimes would become eligible for resentencing or to have those records destroyed.
That’s the highlight reel. I read all 62 pages of Proposition 64 looking for things you might not hear about in most reporting. Here’s what I found:
1. Cannabis won’t be available everywhere.
It’s hard to locate a town in California without a tavern or a liquor store, but don’t expect same thing with cannabis. Cities and counties can ban cannabis businesses, and it’s likely that many will. This is a common feature of legalization measures, meant to allow communities to decide locally how to regulate the cannabis industry.
Don’t like it? Reach out to your local officials. Some cities have made tremendous progress thanks to citizen activism. And it’s worth noting: Municipalities that ban cultivation or retail sales won’t be eligible to receive certain cannabis tax revenues meant to enhance law enforcement, fire protection, or other public safety programs.
2. Anyone can grow cannabis at home.
Even if your city or county decides to ban cannabis businesses, it can’t keep you from growing your own. Municipalities would be required to allow adults 21 and older to cultivate up to six plants for personal use. Local governments could prevent you from growing those plants outdoors, but they couldn’t bar you from cultivating small amounts of cannabis inside your private residence.
It’s not clear, though, whether landlords could prevent tenants from growing for personal use. Prop. 64 defines a private residence as “a house, an apartment unit, a mobile home, or other similar dwelling,” but it’s possible cultivation could be disallowed under the terms of a lease. (Americans for Safe Access has a helpful summary of current housing law for medical patients.)
3. Retail shops can’t sell blunt wraps.
Are you one of the many cannabis consumers who prefer blunts? Don’t plan on a one-stop shop. Businesses that sell tobacco or alcohol products aren’t eligible to sell nonmedical cannabis. Entrepreneurs eager to sell pre-rolled blunts—or consumers plain tired of rolling them—will have to wait.
4. Organic cannabis is coming.
This is California, after all. Prop. 64 directs the state Department of Food and Agriculture to “establish a certified organic designation and organic certification program for marijuana and marijuana products.” If adopted, California’s program could become the first of its kind in the country. Colorado put forward a similar plan but lawmakers earlier this year rejected the proposal, saying an organic label would imply cannabis is healthy. (Want to buy organic Colorado vodka, though? Go for it.)
5. Appellations are getting support, too.
Farmers in Humboldt and Mendocino counties are well aware their regions have a reputation for primo cannabis. Prop. 64 wants to make sure that producers outside those areas don’t try to cash in on their names through clever branding. Only cannabis grown in a specific region can use that name on labels, packaging, or marketing materials. Further, materials for cannabis grown outside a particular appellation can’t display “any statement, design, device, or representation which tends to create the impression that the marijuana originated in [that] particular place or region.”
It’s tempting to associate the appellations program with a growing interest in cannabis terroir—the character cannabis takes on from a region’s soil and its environment—but Prop. 64 wouldn’t require appellation-specific cannabis to be grown outdoors or even in soil. That could diminish any regionally identifying traits in the final product. (Is Napa Valley wine the same thing if the grapes were grown hydroponically in a warehouse?)
6. Delivery services are here to stay.
Don’t have a car? Unsafe to drive? Broke your stupid ankle? Prop. 64 would allow licensed retailers and delivery services to bring cannabis to your door. And even though local governments could ban cannabis businesses, the measure says jurisdictions “shall not prevent delivery of marijuana or marijuana products on public roads.” In other words, picking up a pack of pre-rolls could soon be as easy as ordering a pizza. This isn’t exactly new: A thriving delivery market already has emerged quasi-legally within the state’s existing medical system.
7. Water could set an upper limit on California cannabis.
Under Prop. 64, licensed growers would be required to obtain a unique identifier for every single plant. Imagine barcodes on bracelets around the base of each one. The identifiers would be a key part of the measure’s track-and-trace program, but they could also dictate the future of California’s cannabis industry. A provision in the measure says that new identifiers could only be issued in areas where there’s enough water to support the plants. “If a watershed cannot support additional cultivation,” it says, “no new plant identifiers will be issued for that watershed.”
California has long struggled with water supply issues, and problems have only gotten worse as the climate grows hotter and drier. Regulators have already slowed pumping water to Southern California in order to protect a tiny, endangered fish critical to the Sacramento–San Joaquin Delta ecosystem. It’s conceivable that water woes could one day set a cap on cannabis cultivation in the state, too.
8. Say goodbye to infused Sour Patch Kids.
California medical patients (or fans of Conan O’Brien) are likely familiar with some of the infused lookalike products currently sold in the state. Those could soon disappear. Prop. 64 prohibits products “easily confused with commercially sold candy or foods that do not contain marijuana.” It will be interesting to see how courts interpret that phrase; Sour Patch Kids might be obvious, but an infused brownie can sure look a lot like a regular one.
“No licensee shall give away any amount of marijuana or marijuana products, or any accessories, as part of a business promotion or other commercial activity,” the measure reads. This will likely come as a disappointment to California consumers who’ve developed a fondness for traveling from dispensary to dispensary to collect new-member freebies. It could also put a damper on industry and consumer events, where giving away dabs, pre-rolls, grinders, and other goodies is the practice du jour.
10. Advertisers, start your calculators.
Some legalization opponents—we’re looking at you, Sen. Dianne Feinstein—have claimed Prop. 64 would allow cannabis advertising aimed at children. We can all agree that would be terrible. So it’s a good thing it’s not exactly true. (PolitiFact rated her claim “mostly false.”) But that doesn’t mean the advertising laws would be simple.
Prop. 64 says advertising “in broadcast, cable, radio, print and digital communications shall only be displayed where at least 71.6 percent of the audience is reasonably expected to be 21 years of age or older, as determined by reliable, up-to-date audience composition data.” I was on page 34 and feeling pretty good about myself at that point, but when I got to that phrase I called a lawyer.
Rebecca Stamey-White, a partner at Hinman & Carmichael in San Francisco who handles alcohol and cannabis matters, told me the rule was borrowed from the adult beverage industry, where it exists as a self-imposed industry guideline, not a law. It means advertisers have to pay attention to (and a lot of money for) things like Nielsen ratings and other industry data that break down audiences into demographics.
It probably goes for unpaid social media activity, too—already widely used by the state’s medical cannabis market. “The way it works in alcohol is, everything is advertising. It’s all commercial speech,” said Stamey-White. That said, she predicted many platforms could meet those standards. “When Snapchat came out, it skewed very young. That was a platform a lot of brands wanted to be on, but it took a while to rise above that threshold.” Even if the state were to have a hard time policing that requirement, as Stamey-White predicted it could, violation still would technically put businesses out of compliance with state law—and compliance with state law is key to protecting state medical markets from federal prosecution.
This will be up to cities and counties if Prop. 64 passes. The initiative says “a local jurisdiction may allow for the smoking, vaporization, and ingesting of marijuana or marijuana on the premises of a retailer or microbusiness.” Consumption couldn’t be visible from a public place, and the establishment wouldn’t be able to sell alcohol or tobacco. Still, it means Amsterdam-style coffeeshops could be coming to at least some parts of the Golden State in the next few years.
12. Big growers would be prohibited until 2023.
In an effort to prevent industry monopolization, Prop. 64 wouldn’t begin licensing any large growers—those with more than one acre of outdoor grow space or 22,000 square feet of indoor canopy—until Jan. 1, 2023.
Although size would be limited during the first few years, most businesses would be eligible to apply for multiple licenses, meaning a single company could be a grower, concentrate manufacturer, retailer, and delivery service. Testing laboratories must be separate under the measure.
Concerned about lobbying efforts by special industry interests? You’re not alone. Prop. 64 requires annual reports from state licensing authorities, which must include “a detailed list of the petitions for regulatory relief or rulemaking changes received by the office from licensees requesting modifications.” The measure doesn’t seem to add additional state requirements to track lobbying lawmakers in Sacramento, but it does attempt to build an element of transparency into the process.
Have you slogged your way through all 62 pages? Here’s the link again. Read it and let us know what jumps out at you.