The lack of federal guidance has led to a patchwork of state laws and outright oddities around cannabis. While some of these regulations have presented lucrative loopholes for entrepreneurs with a high risk tolerance, the intended and often unintended consequences of others can be difficult to comprehend.
“Marijuana laws in America, beyond being almost universally draconic and overly punitive for most of our history, are also extraordinarily odd even to this day,” said Erik Altieri, former executive director of NORML and current strategist for the Clean Slate Initiative.
Altieri points out that a significant factor behind the eccentricities of American cannabis laws comes from the decentralized approach to policy-making.
“Marijuana policy is largely drafted and enforced at the state and local level,” he said. “This resulted in a patchwork of cannabis laws that can change radically when you cross a state border. With so many varying systems, combined with laws that have been slowly evolving for decades, first with small steps toward medical access and decriminalization and, more recently, to fully regulated legal markets, you end up with some very strange and esoteric laws.”
Recreational cannabis gift economy in D.C.
When Washington, D.C. voters approved Initiative 71 in 2014 and Congress didn’t push back, it became legal for adults 21 years of age and older to possess up to two ounces of cannabis, grow six plants, and transfer up to one ounce to another person for free. While medical consumers in the nation’s 68-square-mile capital have access to six licensed and highly-rated dispensaries in Washington D.C., recreational sales are technically prohibited.
But a quick Google search will yield a long list of so-called gifting dispensaries with brick-and-mortar storefronts openly advertising the best “edibles, extracts, and flower gifts in D.C.” These retailers sell various items like overly-priced art, shirts, stickers, and lighters, each of which comes with a cannabis product as a “free gift.” Many of these shops go as far as calling themselves I-71-compliant recreational dispensaries.
In April 2022, the D.C. Council voted against imposing harsh penalties intended to put the illicit retailers selling unregulated products out of business.
“If we shut down the brick-and-mortar shops, it’s just going to go to a delivery service … which is going to make it even harder for us to solve the problems” presented by the so-called gifting businesses, said Elissa Silverman (I-At Large), one of the five members who opposed the bill.
Massachusetts is a swag-free state
Cannabis consumers who shop in Massachusetts will find a wide variety of high-quality regulated cannabis products from major national and local brands, but that’s about it. Bay State retailers are not legally allowed to produce or sell promotional gifts.
This includes potentially valuable branding and merchandising opportunities in t-shirts, stickers, and other novelty items bearing a logo or even reference to cannabis or the dispensary itself.
You must move it on the asphalt in California
In California, a state known for its relatively relaxed stance on recreational and medical marijuana, there’s a strange restriction on commercial transportation. According to the state’s department of cannabis control, commercial transportation by means of “aircraft, watercraft, drone, rail, human powered vehicle, or unmanned vehicle” is prohibited.
That leaves traditional automobiles and covered trailers as the only legal options for transporting millions of pounds of cannabis each year across a state that stretches 760 miles from north to south.
Italics are prohibited in Nevada
If you walk into a popular dispensary in Las Vegas, you may notice a meticulous approach to labeling prevails. All text on marijuana product labels in Nevada must adhere to at least an eight-point font size without the use of italics. Similarly, the text on any dispensary disclosures and warnings must have a minimum font size of twelve and may not be in italics.
Edibles get a special meal tax in Maine
In many states like Maine, common or staple grocery foods are not taxed. However, cannabis edibles are subject to the same 8 percent tax rate and categorization as other prepared foods, lodging, and liquor in the state. Luckily, local governments and municipalities are not permitted to charge additional cannabis taxes which keeps Maine’s cannabis tax rates relatively low.
You can’t screen for kief in Oklahoma
Individuals consuming cannabis for personal or medical use could be charged with felony hash manufacturing for possessing a seemingly innocuous multi-chamber grinder with a kief-catching screen in Oklahoma. While harsh prosecution solely for a personal grinder is unlikely, the act of converting cannabis into hashish or concentrates is a felony punishable by two years to life with a maximum fine of $50,000.
Oklahoma passed medical marijuana regulations in 2018, but an overwhelming 61.67 percent of voters in the state opposed the adult-use initiative in 2023 to legalize recreational cannabis for adults 21 years old and older.
Past, present, and future
“Before the Controlled Substance Act (CSA) that we all know and loathe was enacted in the 1970s, most federal marijuana policy was tied to the Marijuana Tax Act of 1937,” said Altieri. “Under this act, the federal government mandated that it was illegal to possess cannabis unless you also could furnish a tax stamp confirming you paid taxes on your marijuana. Given the general illegality around marijuana possession, it should be no surprise that almost no consumer was excited to show up at a government office, show their contraband, and then pay taxes to get a stamp. The result was that the Marijuana Tax Act was simply a tool for arresting individuals for personal use amounts of cannabis.”
In 1967, a commission under President Johnson, who was not a fan of cannabis, went on record denouncing the antiquated tax practice.
“The Act raises an insignificant amount of revenue and exposes an insignificant number of marijuana transactions to public view since only a handful of people are registered under the Act. It has become, in effect, solely a criminal law, imposing sanctions upon persons who sell, acquire, or possess marijuana,” the Commission on Law Enforcement and Administration of Justice stated.
The Marijuana Tax Act was replaced by the CSA in 1970, and cannabis was added as a Schedule I substance in 1971.
In 1988, Drug Enforcement Administration (DEA) Chief Administrative Law Judge Francis Young ruled against the Reagan administration’s drug policy and declared cannabis fit for medical consumption. However, the controversial ruling did not succeed in rescheduling cannabis after pushback from the head of the DEA, and the issue was largely laid to rest for 35 years.
In April, U.S. health officials recommended moving cannabis to Schedule III of the CSA in a letter sent to DEA Administrator Anne Milgram. The recommendation followed President Biden’s request for Health and Human Services Secretary Xavier Becerra and Attorney General Merrick Garland to “expeditiously” consider whether the plant’s classification under the CSA is too severe. If the Biden-nominated head of the DEA agrees with the reclassification, this patchwork of outlandish cannabis policy may begin to unravel with more consistent federal guidance.
Although it’s clear that cannabis prohibition is far from over in the United States, Altieri has an optimistic view of the future.
“Thankfully most of the strange laws being discussed today are outgrowths of states moving away from our failed and racist prohibition, and toward a more just and sensible system of legalization and regulation,” he said. “With more and more states ceasing the arrest of cannabis consumers and implementing retail markets, we should take a page from the late great David Bowie and, for now, simply turn and face the strange.”