By Guy Page
The House Government Operations Committee Thursday night amended and approved S.54, taxed and regulated legal marijuana. The new version increases six-fold the permitted amount of THC in marijuana products, and does not allow towns to prohibit marijuana cultivation and production.
S.54 may be up for discussion by the full House as soon as Tuesday, or go to other committees for review. The following is a Headliners analysis of the bill as it appears on page 1615 of this House calendar.
No roadside saliva test for impaired drivers. Taking the advise of the House Judiciary Committee and the ACLU, Gov Ops specifically prohibits roadside saliva testing of suspected impaired drivers. Instead, a saliva test could only be administered at a police barracks and with a judge’s court order. Gov. Phil Scott has said he would veto a tax and regulate bill that does not include an effective roadside saliva test — which experts say does not exist.
The bill says testimony by a trained Drug Recognition Expert (DRE) police officer will be accepted as evidence in court. However, no Vermonter has ever been convicted in jury trial on DRE evidence, and a superior challenge of a future conviction is considered likely. The State of Vermont currently has trained 54 DRE officers. Ongoing training, plus time spent away from other duties, is expected to significantly raise law enforcement costs. If federal grant funding for DRE training is reduced, as some legislators say could happen, Vermont will be “on the hook” for these expenses.
Energy, environmental and water quality issues bypassed. The bill bypasses direct regulation of environmental impacts associated with marijuana cultivation and production by directing the Cannabis Control Board to prepare “recommendations” on energy, environment and water quality for the Legislature’s consideration. In a somewhat atypical move for our environmentally-conscious, hands-on Legislature, these issues would only be addressed after the bill is passed.
Psychosis-inducing levels of THC allowed in products appealing to children. The committee also asks the Control Board to determine whether a cannabinoid should be added to marijuana products “to aid in the prevention of cannabis-induced psychosis that occurs in some users of cannabis and cannabis products.” The committee acknowledges the risk of marijuana-induced psychosis yet offers the clinically dubious solution of a cannabis additive. The required warning label on each product does not mention psychosis.
The Gov Ops bill elevates the 10 percent maximum concentration permitted in the Senate bill to 30 percent for marijuana “flower” and 60 percent for concentrated marijuana products, which typically include gummies and cookies – the very products that are most attractive to unsuspecting young children. Researchers agree that the greater the level of THC, the greater the risk of psychosis among heavy users, especially the young.
Local control weakened. The bill requires an “opt-in” decision by town voters for retail marijuana operations. But there are no local control protections – opt-in or opt-out – for marijuana cultivators or producers. Also not included in the opt-in language are “integrated” license holders – medical marijuana dispensaries empowered by their license to sell to customers without a medical marijuana card, in effect becoming retail pot shops.
The retail shops will be the last ‘tax and regulate’ operations to open, so there’s plenty of time for the next Legislature to eliminate the local control option for them, too, should it choose to do so. Also, if a community changes its mind and votes to “opt out” of retail marijuana, existing retail operations would remain open.
Expands Cannabis Control Board from three to five members, establishes separate advisory board. The Gov Ops bill adds two members to the three proposed by the Senate. Each of the five members of the “independent” commission would be paid about $80,000/year, with the chair earning about $110,000. Gov Ops also proposes an executive director, an administrative assistant, a consultant, and “such staff as shall be required.” It also proposes a separate, apparently unpaid advisory board.
Taxation set far below level recommended by Governor’s tax experts. The Gov Ops bill would levy a 16 percent state sales excise tax, and a two percent local option tax. Thirty percent of the excise tax, not to exceed $6 million per year, would be dedicated to funding substance abuse prevention programs. But will this raise enough tax revenue? Prevention experts and Gov. Scott’s tax officials say funding prevention and other state costs associated with legalization would require overall taxation of about 26 percent. It is unclear how the House plans to fund effective prevention, law enforcement, and the new regulatory apparatus through licensing fees and a 16 percent excise tax. In fact, finding a solution for this problem – in addition to environmental issues – is left to the Cannabis Control Board.
One possible explanation for the relatively low tax rate is that the Gov Ops bill seeks to ‘legalize’ small, currently illegal marijuana cultivators and producers. “It is the intent of the General Assembly,” the proposed bill says, “to move as much of the illegal cannabis market as possible into the regulated market…” and “to encourage participation in the regulated cannabis market by small, local farmers.”
Gov Ops Chair Sarah Copeland-Hanzas explicitly told the Democratic caucus Tuesday, April 30 that her intent was to bring existing, “illicit” growers into the legal market. These growers of course pay no excise tax or fees now.
Deficit spending permitted. One observer at last night’s committee meeting said a possible $2.6 million shortfall was mentioned during discussions. Gov Ops clearly expects tax and regulate set-up expenses may run in the red: “to the extent that the Cannabis Regulation Fund has a negative balance at the close of the fiscal year 2022, proceeds in that amount from the tax….in fiscal year 2023 shall be deposited into the Cannabis Regulation Fund.” (House Calendar Pg. 1625.) The bill does not advise how to address expenses in the following year, or what the State should do if the fund is chronically underfunded.
S.54 was reportedly reviewed by House Ways and Means (taxation) committee today. It is likely to be placed on the House calendar for Tuesday, May 7. At that point it will either be referred to another committee, or be scheduled for a full vote by the House.
Vermonters who wish to express their opinions on S.54 may contact their House representatives by calling the Sergeant-of-Arms office at 828-2228 during business hours, or by emailing their legislators. Gov. Scott may be contacted by email and also by phone at 828-3333.
Statehouse Headliners is intended primarily to educate, not advocate. It is e-mailed to an ever-growing list of interested Vermonters, public officials and media. Guy Page is affiliated with the Vermont Energy Partnership; the Vermont Alliance for Ethical Healthcare; and Physicians, Families and Friends for a Better Vermont.