Cannabis Now reviews 'Craft Weed'

My book Craft Weed: Family Farming and the Future of the Marijuana Industry comes out in a couple weeks. I’m thrilled to see K. Astre of Cannabis Now provide an early review of the book. See the full review here. An excerpt is provided below:

Stoa weighs a lot of factors in making a case for craft weed as an industry staple. For example, he considers whether or not a high maintenance plant like cannabis is fit for commercial growth and if corporations would be able to keep up with the demand for a variety of strains and resist commoditizing marijuana like wheat, soy or rice. The book beckons consumers to consider how a move toward commercial cannabis would not only influence their access to the seemingly endless amount of strains and products they have grown accustomed to, but also how it would impact the quality and efficacy of what they are consuming.

With 10 chapters and just under 200 pages of content (minus notes and an index), “Craft Weed” is a good read for people who are interested in going beyond the surface of business and learning about some of the other pieces that impact the vulnerable cannabis market. It’s a look at cannabis agriculture from all angles, with a little something for people with different interests in the topic. Some readers will appreciate the chapter on cannabis and its environmental impact, others may be fascinated about genetics and some will be drawn to stories and anecdotes from old-timers with decades of experience in the industry. For example, the book includes an interview with 65-year-old Elaine, who questions whether she can still survive in the new market after selling some of her harvest for record-low prices, and an interview with Sunflower, a seasoned grower who started her career working on guerilla grows and weathered multiple raids, but is now considering going legal.

The clear message throughout the book is that cannabis should not only be cultivated with the care, consideration and agricultural skill that it deserves, but also that the families who have dedicated their lives to farming quality cannabis and growers that maintain sustainable farming practices should be the ones growing it, not corporations looking to get rich. Stoa believes that marijuana legalization has the potential to revitalize the American family farm and rural economies nationwide and “can’t think of a more responsible approach to marijuana agriculture than a vigorous and cooperative community of family farms, supplying consumers with sustainable, high-quality marijuana, right here in the USA.”

Canadian Cannabis Regulation

Photo: Douglas Sprott.

In early March I participated in a fascinating symposium hosted by the McGeorge School of Law entitled Regulating Marijuana at Home and Abroad.  Perhaps because the marijuana industry is evolving so rapidly, every participant (and many of the attendees) seemed to have some new insight that no one else had picked up on yet.  I was given the opportunity to speak about the differences between US and Canadian marijuana agriculture regulations, highlighting some recent trends among US states on the one hand, and the Canadian federal government on the other hand.  

Canada's marijuana industry is at an inflection point this year, as Parliament is expected to consider and pass legislation that would legalize recreational marijuana use on the national level. Existing national regulations have proceeded in piece-meal fashion with mixed results.  This could be due to the fact that Canada's Parliament was forced to pass medical marijuana legislation by a series of court decisions that found it to be an unconstitutional violation of individual liberty and public health to maintain a federal marijuana prohibition.  I wrote an article comparing Canadian and US approaches to marijuana agriculture regulation that is forthcoming in the McGeorge Law Review (access it here). The introduction to the article is below: 

Federal marijuana policy in the United States and Canada has, in recent decades, been fixated on prohibition. That may be about to change.  In 2017, Canada is expected to become the first ‘Group of Seven’ nation to propose legislation that would legalize and regulate marijuana for recreational use.  According to the Canadian government’s party platform, “marijuana prohibition does not work.”  In a change of direction from decades of prohibition, the government is now calling for Parliament to “legalize, regulate, and restrict access” to marijuana.  Importantly, policymakers and regulators are in the process of developing a federal framework for marijuana regulation that would address agricultural considerations, including environmental impacts and protections for small-scale farmers.

The mood of the United States federal government is a marked contrast.  Marijuana has been a federally criminalized substance since passage of the Controlled Substances Act in 1970.  Following the 2016 presidential elections, there is uncertainty regarding President Donald Trump’s stance toward marijuana legalization and regulation on the state level. However, early indications suggest his administration is not interested in a federal regulatory framework.  Although the Republican Party in control of the federal government is generally supportive of federalism principles and state autonomy, there is fear that the federal government will interfere with state marijuana legalization and regulation efforts.  Absent a regulatory framework that goes beyond prohibition, there is little hope for federal involvement in agricultural or environmental issues facing the marijuana industry.

In addition to this contrast on the federal level, the United States and Canada have divergent experiences when it comes to subnational marijuana legalization and regulation.  In the United States, marijuana legalization has gained momentum and become commonplace on the state level.  California became the first state to legalize medical marijuana use in 1996.  Colorado and Washington then became the first states to legalize recreational marijuana use in 2012.  At the time of writing, twenty-eight states had legalized medical marijuana, while eight states (plus the District of Columbia) had legalized recreational marijuana.  Only five states have maintained a strict prohibition policy on marijuana cultivation, distribution, sale, or consumption.  These states represent less than five percent of the U.S. population.  Despite the federal prohibition, there are now a multitude of state regulatory frameworks in place, with a variety of statutory goals and approaches to compare. 

Canada has not experienced the same subnationally-driven path toward legalization.  Instead, the erosion of prohibition has been driven largely by the courts.  Regina v. Parker, 49 O.R. (3rd) 481 [2000], set the stage for legalization by declaring the federal government’s marijuana prohibition unconstitutional absent an exemption for medical necessity.  As the Court stated, “the marijuana laws forced the accused to choose between commission of a crime to obtain effective medical treatment and inadequate treatment,” a deprivation of liberty, security, and fundamental justice.  Invalidating the marijuana prohibition forced the Canadian Parliament to develop at least a basic framework for medical marijuana use.  Although the development of subsequent regulatory frameworks has been inconsistent, Canada’s experience with marijuana regulation on the federal level can serve as a meaningful starting point with which to pursue recreational legalization and regulation. 

A more developed exploration of U.S. and Canadian experiences with marijuana legalization and regulation is provided in the next section. However, this essay’s primary focus is on the contrasting experiences of these two countries with respect to marijuana agriculture.  The agricultural component of the marijuana industry is, after all, where the chain of supply begins.  And yet, the need for thoughtful and realistic agricultural regulations often takes a back seat to more visible concerns, such as distribution, marketing, sale, and consumption.  The lack of attention paid to marijuana cultivation is a disservice to farmers, regulators, and consumers.  Farmers often confront ambiguous or unresponsive legal requirements, and are forced to choose between staying in the shadows of the illicit market or attempting to comply with a confusing web of unrealistic regulations.  Policymakers and administrative agencies face their own challenge, tasked with creating an ambitious regulatory framework from scratch.  These regulators often do not have a history with the marijuana industry, or analogous regulations to fall back on.  Consumers and the public at large, finally, benefit from having a diversity of market options, as well as marijuana that is sustainably cultivated. 

The early record of marijuana agriculture regulation in the U.S. and Canada is mixed.  Some U.S. states, such as California, acknowledge the agricultural component of the marijuana industry and are taking steps to develop a regulatory framework that supports farming communities and the environment.  Other states, such as New York and Florida, aim to control cultivation by severely limiting the number of producers.  In any case, most states have not developed a robust regulatory scheme for marijuana that comprehensively addresses agricultural issues.

Canada’s approach to marijuana agriculture regulation has been simultaneously restrictive and permissive under the current medically-focused framework.  On the one hand, Health Canada (authorized to regulate cultivation) has only issued thirty-seven cultivation licenses nation-wide, despite receiving 1,561 applications.  Eleven Canadian provinces have two cultivators or less.  In addition, marijuana can only be grown indoors, an energy-intensive agricultural method that artificially reproduces the light, soil, and water conditions found on outdoor farms.  On the other hand, licensed cultivators are allowed to develop, grow, and sell whatever strain(s) of marijuana they see fit, and are free to set their own prices. 

In anticipation of legislation that would legalize and regulate recreational marijuana in Canada, the federal government formed a task force to make recommendations on marijuana policy.  The task force report recommended significant changes to the current approach to agricultural regulation.  Notably, the report recommended that: 1) the federal government take the lead on regulating agriculture; 2) licensing schemes be adapted to promote a diversity of cultivators, including small-scale farmers; and 3) environmental protection be promoted through regulations that include licensing and supporting outdoor farmers.  If implemented, the recommendations would represent a markedly more diverse and inclusive approach to marijuana agriculture regulation.

This essay proceeds accordingly.  In Part II, a brief history of marijuana prohibition, legalization, and regulation in the U.S. and Canada is provided and contrasted.  Part III paints a picture of marijuana agriculture regulation in the U.S. by exploring approaches in three states (California, Colorado, and Washington) where regulatory frameworks for cultivation are relatively developed.  Part IV tells the Canadian story (where agricultural production is, for now, scarcely permitted), while looking ahead to impending regulations for recreational marijuana.  Part V concludes by drawing out common regulatory successes and failures, with an eye toward lessons learned that can inform the future development of marijuana agriculture regulations in the United States and Canada. 

Introducing 'Marijuana Agriculture Law'

Photo: Brittney

If you've been following this blog for the past few weeks, you've noticed that I've been teasing out my forthcoming article entitled "Marijuana Agriculture Law: Regulation at the Root of an Industry."  I wrote about marijuana appellations, as well as the potential for counties across the country to start adopting a marijuana ordinance.  I've been working on the article for the past few months, and I'm pleased to finally post a full draft online.  See here for access to the article.  The article will be published in the Florida Law Review sometime next year, but this draft is available immediately.  Major themes covered include the potential commoditization/consolidation of the marijuana industry, the environmental regulation of marijuana agriculture, and the administrative challenges of regulating this new industry.  Below is the introduction to the article:  

Across the United States, voters are weighing the costs and benefits of marijuana legalization.  As many as sixty marijuana legalization initiatives may appear on election ballots in 2016, legalizing the recreational or medicinal use of marijuana in as many as 17 states and adding to the growing number of states that have already legalized marijuana.  As states move toward legalization, governments will need to address a broad range of regulatory issues, including the distribution, sale, and consumption phases of the supply chain.  But legal marijuana’s track record so far suggests that the agricultural component of the marijuana industry is being ignored.  Whether states are failing to appreciate marijuana’s agricultural roots or choosing to disregard them, the industry’s direction will be out of state control until regulatory frameworks are in place.  

Nowhere has this been more apparent than in California.  In 1996, California voters passed Proposition 215, the Compassionate Use Act (CUA).  With the CUA California became the first state to legalize the medicinal use of marijuana, exempting patients and prescribing physicians from criminal prosecution.  The text of the act was short, and did not address how the state or local governments were intended to regulate the marijuana industry.  It did not, for example, assign regulatory authority to an administrative agency, articulate limits on possession or cultivation, or propose a broad regulatory framework from which the state or local governments could operate. 

In the wake of the CUA a legal medical marijuana industry was created in California, and the industry experienced tremendous growth, notwithstanding the absence of any meaningful state regulations.  But the CUA’s omissions prompted the state legislature to enact the Medical Marijuana Program Act (MMPA) in 2003, which, among other measures, restricted the number of plants medical marijuana patients or designated caregivers could cultivate, and assigned further regulatory authority to the Attorney General.  Even these limits, however, became legally ambiguous guidelines after the California Supreme Court ruled that the rights established by constitutional amendment Proposition 215 could not be limited by legislative act.  The upshot of these early experiments with marijuana legalization is that California’s burgeoning marijuana industry has been more or less unregulated for twenty years.

In the absence of regulation, marijuana cultivation in California has exploded, with approximately 50,000 marijuana farms accounting for 60% of all marijuana grown in the United States.  There are as many marijuana farms in Humboldt County, California, as there are wineries statewide.  And this un-checked growth in marijuana agriculture has consequences for the sustainability and potential growth of the industry.  Marijuana farming has been blamed for sucking rivers dry, poisoning soil and water resources with pesticides and rodenticides, and clearing mature forests.  Much of these criticisms are flawed, as research on the environmental impacts of marijuana farming is nascent and rarely acknowledges that farmers can grow responsibly and sustainably on private lands. 

Many farmers would welcome the security of being in compliance with state and local laws, while being distinguished from cartel operations or destructive “trespass grows” on public lands.  As it stands, farms on private property remain vulnerable to police raids and asset forfeiture laws, and are unable to take advantage of typical agricultural government services, such as crop insurance programs or pesticide-free certifications.  Because marijuana agriculture’s regulatory contours have remained ambiguous for so long, the marijuana agriculture industry has been poorly understood by states and the public.  This disconnect presents a threat to responsible management of legal marijuana markets. 

Fortunately, change is on the horizon in California.  In January 2016, the Medical Marijuana Regulation and Safety Act (MMRSA) came into effect, with ambitious proposals to create comprehensive regulations for marijuana agriculture.  The MMRSA assigns authority for various regulatory responsibilities to a variety of state agencies, including the Department of Food and Agriculture, Department of Fish and Wildlife, Department of Public Health, and the State Water Resources Control Board.  Said the author of the bill, “cultivators are going to have to comply with the same kinds of regulations that typical farmers do…it's going to be treated like an agriculture product.”  It took twenty years to get there, but marijuana cultivation has finally been recognized as an agricultural activity in California, and may now be regulated as such.

The same cannot be said for every state that has legalized, or is considering legalizing, medicinal or recreational marijuana.  In many states the immediate regulatory priority is the distribution, sale, and consumption of marijuana.  Colorado legalized recreational marijuana by passing Amendment 64: The Regulate Marijuana Like Alcohol Act of 2012.  For political and public health reasons the analogy makes sense, but it also reveals a regulatory blind spot.  States may be using alcohol as a model for regulating the distribution, retail, and consumption of marijuana, but marijuana is much more than a retail product.  It is also an agricultural product, and by some measures, the largest cash crop in the United States.  Since marijuana prohibition laws were passed long before any regulations for cultivation were developed, states are facing an unprecedented challenge: regulate, for the first time ever, one of the country’s largest agricultural industries.  

Early indications suggest that states are making little effort to regulate marijuana cultivation, or fail to appreciate the disruptive potential of marijuana agriculture.  21 states may have marijuana legalization initiatives on their ballots for the 2016 elections.  Colorado, Washington, Oregon, Alaska, and Washington DC have already legalized the medicinal and recreational use of marijuana.  But few of these states are anticipating the unique regulatory challenges that marijuana agriculture presents.  Even fewer are prepared to tackle them.

This Article argues that marijuana is a burgeoning agricultural industry, and calls for regulations that recognize it as such.  As the field of marijuana agriculture law is incipient, this article provides a roadmap for the major regulatory issues states and the industry are likely to encounter.  Many agricultural policies and programs are created or supported by the federal government, and would not apply to marijuana agricultural activities that run afoul of federal marijuana prohibition laws.  Therefore, states and the marijuana industry will need to be creative in providing analogous regulatory functions.

The most immediate choice regulators will be forced to make is between an approach that incorporates the marijuana industry into the existing regulatory framework for agriculture (essentially treating marijuana like any other agricultural product), or an approach that creates a separate regulatory framework for marijuana cultivation.  While the former has its benefits, and may be achievable long-term, marijuana’s transition from the black market may call for a targeted regulatory scheme in the interim. 

Another fundamental issue facing the marijuana agriculture industry has not yet been conclusively resolved: is marijuana an agricultural commodity?  Commodities are fungible goods with no qualitative differentiation, such as wheat or soybeans.  Many existing farmers fear that marijuana markets will be flooded with cheap, indistinct marijuana grown by “Big Ag” conglomerates.  To counteract these concerns, some industry groups are advocating for states to adopt an appellation model of marijuana cultivation that would preserve markets for regional marijuana products and maintain quality standards.  States and counties can play a large role in this existential question by adopting or rejecting the appellation model, or by enacting other regulations that facilitate or preclude the consolidation of marijuana agriculture.

There is an environmental component to marijuana agriculture that will also require regulatory attention.  Pesticides and fertilizers facilitate plant growth, but may reduce soil and water quality.  There is a market for organic or pesticide-free marijuana that states and the marijuana industry may wish to cultivate.  Marijuana agriculture also requires appropriate quantities of water for irrigation and, when grown indoors, energy resources.  Regulators must balance an interest in providing resources to a growing industry with the need to manage those resources sustainably.  

When the environment does not cooperate, the federal government has been instrumental in providing stability to the agricultural industry by regulating crop insurance and providing disaster relief.  As marijuana farmers would not be eligible for these programs, states may want to provide their own support structures.  However, it may be difficult to avoid the federal government’s institutional and legal reach, presenting federal preemption concerns.

Another question concerns power sharing: where can/should regulatory authority be placed?  Local governments may play a large role in the direction of marijuana agriculture, as states with marijuana regulations have so far been broadly permissive of counties and municipalities creating their own (often more restrictive) marijuana agriculture regulations.  Local governments can utilize their lawmaking powers to shape agricultural policy for the marijuana industry, but this decentralized nature of policy-making may come at the expense of regulatory clarity for the state as a whole.

Keeping the regulatory framework centralized on the state level provides more consistency, but may be difficult to apply in states where political support for marijuana cultivation changes drastically by jurisdiction.  In addition, states will need to decide whether to consolidate regulatory authority for marijuana into one state agency, or to assign different roles and responsibilities to several agencies and regulate cooperatively.  Colorado has adopted the former model, while California the latter.  

In February 2016, Humboldt County passed a comprehensive commercial marijuana cultivation ordinance, one of the first of its kind.  As the heart and soul of California’s marijuana agriculture sector, Humboldt County has consistently played a leadership role in the development of the marijuana industry, and this ordinance may prove instrumental in shaping marijuana agriculture policies around the country.  The ordinance addresses many of the issues identified in this article, placing limits on farm size, water, and energy use, while developing an artisanal labelling program.  The Humboldt County ordinance is an ideal case study for the nascent field of marijuana agriculture law, and underscores the need for state and local governments across the nation to start developing their own regulatory framework.   

Never before has a major agricultural product entered legal markets with the pace and scale that marijuana is entering them today.  States face an unprecedented regulatory challenge, and ignoring the agricultural dimension of the marijuana industry is not a sound long-term approach.  This article will present and analyze the most significant legal and regulatory challenges states will face when legalizing marijuana.  Responsible and sustainable marijuana agriculture can be fostered at the state level, but only if regulations are responsive to the unique and unprecedented challenges that marijuana agriculture presents.

Indoor agriculture's future: bright or blight?

Photo: Phil Hendley

Indoor agriculture - growing food in greenhouses instead of in an outdoor field - is nothing new.  Roman gardeners used a greenhouse-type system to provide cucumbers to the Emperor Tiberius every day of the year.   Today greenhouses cover 0.25% of the Netherlands' total area.  But two recent developments are making agronomists and the private sector look at indoor agriculture on a larger systemic scale. The first is that climate change is wreaking havoc on traditional agricultural areas.  California, for example, grows most of the United States supply of produce, but now faces a recurring lack of water to irrigate those crops.  Indoor agriculture can grow produce any time of the year, virtually anywhere:

In an indoor farm, water doesn’t inconveniently evaporate. LED lights can lengthen the hours of sunlight so plants can grow faster. CO2 levels can be tweaked. Even as the weather outside goes haywire, plants farmed indoors can live out an optimized version of the weather that they coevolved with — the weather of the past. The best weather of the past. 

The second development is an advancement in greenhouse technology and software that monitors plants and growing conditions and adjusts those conditions to reach that optimized environment.  Importantly, these technological advances can mitigate the two major downsides of indoor agriculture: cost and energy.  Outdoor crops use sunlight and rain, so replicating that process makes indoor agricultural products more expensive.  And the massive amounts of electricity required to mimic the sun and pump water into the system dramatically increases the energy footprint of an already carbon-intensive industry.  

Agricultural start-ups are working on these inefficiencies and looking at ways to make indoor agriculture more sustainable (e.g. incorporating solar powered electricity sources).  But, as promising as indoor agriculture might seem, it will be some time until the energy demands are reduced to the point of sustainability.  Indoor agriculture can contribute to food security by ensuring stability in the supply chain, but the most resilient and sustainable food system grows crops at the time, place, and location where they are best suited.  If California isn't a suitable place to grow arugula anymore, it's likely there is a region somewhere else that is.  

Perpetuating agriculture in unsuitable locations, or deciding to replicate natural processes indoors, is partly a by-product of negative externalities and the difficulty in pricing resources like water and electricity to reflect their true cost.   Agricultural policies can make this more difficult as well, providing subsidies to traditional agricultural regions or placing zoning restrictions on lands with potential to support agriculture.  In the face of these barriers to agricultural mobility it's not surprising that market disrupters are enthusiastic about indoor agriculture, but let's not forget that policy changes in the agricultural sector can make a big difference in the resilience and efficiency of the food system.  The sun and the rain still have a role to play.

Greenhouses in the Netherlands.  Photo: Pieter Edelman

Photo: Sint -Katelijne-Wave