Are cannabis providers breaking the law in DC? An attorney breaks it down.

Are cannabis providers breaking the law in DC? An attorney breaks it down.

In 2014, the voters of the District of Columbia approved a cannabis legalization referendum. Called Initiative 71, the Legalization of Possession of Minimal Amounts of Marijuana for Personal Use Act of 2014 was approved by over 70 percent of voters. Many saw it as a way to begin repairing the inequities in the criminal justice system, which caused minorities to be incarcerated for cannabis-related crimes at much higher rates. Initiative 71 gave all adults in DC the legal right to produce, possess, and consume cannabis in the nation’s capital.  

But the initiative was actually was written to be a placeholder for future legislation. The law provides little guidance to citizens or to law enforcement officials. Within the District, a person over 21 years of age can possess up to two ounces of cannabis, grow between six and twelve plants in a residence, transfer as much as an ounce to another person over 21 years old, and use or sell marijuana-related paraphernalia. Although the law allows for the purchase of cannabis, it prohibits the sale of cannabis. (If you’re a legislation junkie, check out D.C. Code § 48-904.01(a)(1).) Many believed that once the initiative passed, the City Council and the Executive Branch would work together to create a sale-and-tax regime like those in Colorado and Washington.

The initiative passed. And the voters waited. Unlike most states, laws passed by voters in DC can be rejected by Congress. The Home Rule Act of 1973 permits Congress to pass a joint resolution of disapproval within 30 days,  thereby repealing the law. When the 30-day window closed with no congressional action, the District’s adult-use cannabis market looked promising. Congress, however, had a different idea. Federal appropriations language was passed to prevent the District’s government from spending any of its funds on the implementation of Initiative 71. The sponsor of the legislative provision, Representative Andy Harris (R-MD-01), believed that the provision would prevent Initiative 71 from going into effect. Instead, D.C. Mayor Muriel Bowser allowed the law to enter into force without any regulatory structure — the legal guidance people who live in DC had been counting on.

Without this legal or regulatory structure, the D.C. adult-use market has become a veritable Wild West. On any given night, District bars and restaurants host hash bazaars. These locations provide visitors with an opportunity to “purchase” cannabis and cannabis type products.  Mostly, these hash bazaars showcase cannabis extract companies. In addition to these hash bazaars, companies throughout the District “gift” cannabis to customers who buy their products. The products sold range from stickers to art painted by the hearing-impaired. Some companies provide no additional goods or service, instead asking clients for “donations” in exchange for cannabis. Representative Harris’ attempt to dismantle the District’s democratically enacted cannabis laws has resulted in the creation of an awkward marketplace where everyone operates in a gray area.

So here in DC, cannabis consumers and companies keep asking me: Is this legal? My answer, naturally, is very lawyerly: It depends. The hash bazaars? Not legal. Providing cannabis in exchange for “donations.” Nope. Not legal either.

But until DC can pass a regulatory framework, we’ll continue to live in the Wild West of cannabis.