Will NJ Legalize Pot This Fall?

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Brian Lehrer: Brian Lehrer on WNYC. Heads up New Jersey if you don't already know this; your election ballot includes a yes or no referendum on legalizing cannabis, marijuana, for recreational use in the state. There's also national news on the cannabis front. The House of Representatives is set for a legalization vote this month. To be clear, individual states would still have to vote to legalize the drug for actual sale, but the MORE Act, as it's called, would remove cannabis from the Controlled Substances Act and erase federal cannabis criminal records for people who've been convicted in the past and some cases.

For those of you who may not know cannabis is a Schedule 1 drug under federal law which puts it in the category for sentencing with heroin LSD, ecstasy, and peyote. Joining me now to talk about the regional and national implications of New Jersey's latest attempt at legalization and the likely outcome of the house vote, is Mona Zhang, states cannabis policy reporter for POLITICO Pro. Mona, thanks for coming on. Welcome to WNYC.

Mona Zhang: Thanks for having me, Brian.

Brian: It's been a while since we covered cannabis legalization in New Jersey on our show. Can you remind listeners how lawmakers were planning on passing it through the legislature last year and why they ultimately failed to?

Mona: Yes. Lawmakers came pretty close to passing a legalization bill last November. I think there were only just a few votes short and that's ultimately why they referred it to the ballot and are having voters decide.

Brian: The issue will be on November's ballot in New Jersey. Do you know how that will play out? Will it be a binding referendum, is my first question. If the majority of New Jerseyans vote for it, does cannabis automatically become legal for recreational use?

Mona: Yes. It is a binding referendum and polls are showing a lot of favorable support for it. Pretty much there's more than 62% support according to various polls for the legalization measure. I think people are very confident that the measure is going to pass. So confident in fact that lawmakers are already starting to work on legislation to implement the ballot referendum as my colleague at POLITICO New Jersey Sam Sutton recently reported.

Brian: One major issue with legalization in New Jersey and in New York last year, as you know, was that people who've been historically prosecuted for cannabis possession or distribution have disproportionately been people of color. Communities of color having paid that price, want to benefit from a new legal weed industry, but without certain checks and balances in the written law, it would basically just allow big national corporations to set up shop and reap all those new profits. That's been happening to a large degree in other legal weed states. Any idea whether that issue is dealt with at all in this ballot initiative?

Mona: The ballot initiative is pretty slim on details quite unlike the legalization bill in the legislature which was almost 200 pages long. I think right now especially among the national reckoning of racism in the criminal justice system, there is an increased focus on cannabis reform as a way to remedy some of those racial disparities in drug enforcement. I think right now as lawmakers move forward in drafting legislation to implement the referendum, that's going to be a really big focus.

I think part of the reason why you've seen legislatures including New Jersey and New York struggled to pass legalization legislation, is because of-- it's not whether people want to have legal marijuana because most lawmakers agree on that point. It's how you legalize marijuana. That issue of how you legalize marijuana in a way that benefits communities that have been harmed by racially disparate marijuana arrests is a key issue and a key sticking point in terms of lawmakers figuring out the nuances of legalization legislation.

Brian: New Jersey listeners, you want to do an informal unofficial thoroughly unscientific Brian Lehrer call-in pole? New Jersey listeners, you can vote for or against cannabis recreational legalization-- I think I said that backwards. Recreational cannabis legalization in New Jersey. Are you for it? Are you against it? Do you have a question about it? For our guests; 646-435-7280. 646-435-7280. Let's do a little informal unofficial thoroughly unscientific Brian Lehrer Show call-in poll.

Another issue, Mona, is taxation. To quote the latest piece that you co-wrote, "If successful, New Jersey's market will boast some of the lowest marijuana tax rates in the nation." What might taxation look like?

Mona: The ballot initiative actually caps the cannabis tax rate at the level of the state's sales tax rate, which is just above 6.6%. That is significantly lower than some of these other states that have implemented recreational legalization. You look at California, for example, and some places when you combine state and municipal tax rates, this product is taxed upwards of 30%.

I think when you have implementation of legalization measures, policymakers really have to balance the desire to raise tax revenue, which is a big concern right now especially with the coronavirus crisis and the state budget crisis, with the desire to compete with the illicit market. One of the reasons why the illicit market is so strong still in California is because cannabis is taxed so high that a lot of consumers would rather just go buy marijuana from the illicit market and not pay that 30% tax.

Brian: Here we get into how New Jersey's legalization might rush along New York to legalize. To quote your piece, "Illegal market would undoubtedly draw consumers from neighboring states and could push others in the region to prioritize legalization over fears of losing tax dollars during a state budget crisis." Is this part of the argument for New Jersey or are advocates making it explicitly that they can use this as revenue from cannabis sales to alleviate the economic crisis being caused by the recession?

Mona: Yes. Lawmakers are making this argument all across the country from Oklahoma to Pennsylvania, as governor you recently seen come out Tom Wolf, talking about wanting to legalize marijuana for the tax revenue because of the coronavirus crisis. I think it's hard to estimate illicit market sales but New York City has one of the biggest illicit marijuana markets in the world. If lawmakers in New York City lots of New Yorkers hopping on the path train across the Hudson River to access legal marijuana, they're not going to be happy about losing that tax revenue.

Brian: It used to be that the risky thing about-- If New Jersey legalized, as it used to be that the risky thing about buying marijuana was buying marijuana. Now the risky thing is taking the path train to get the marijuana.

Mona: [chuckles] Yes.

Brian: Listeners, my guest, if you're just joining us, is Mona Zhang who is the states cannabis policy reporter for POLITICO Pro. That means you're looking at the various states and you report on how five other states actually had their legalization efforts fail due to the pandemic. Just the opposite of the argument we were just describing for and that some people are making. What was that negative association?

Mona: It was really just the challenges created by the public health crisis and social distancing measures, stay-at-home orders. The reason why a lot of these states fail to get their legalization initiatives on the ballot is because these are citizen petitions and organizers have to go door to door collect signatures. Events are a big part of signature drives and, of course, a lot of events were canceled. People are afraid to be approached by strangers wielding like a pen and paper that they don't necessarily want to touch. It was really the public health crisis that inhibited organizers from going out and collecting enough signatures to make the ballot by the deadline.

Brian: Let's take a phone call from Roseanne in Fairfield, New Jersey. Roseanne, you're on WNYC.

Roseanne: Yes, hi. I'm in Fairfield, New Jersey. I was just saying we're mostly a suburban state. A lot of people don't realize that and we do a lot of driving. I do mostly local personally, but I'm afraid [chuckles] if marijuana passed, I'm afraid of people on the road. I believe in decriminalizing and I believe in medical marijuana, but I've been paying attention to Colorado in California and how many people don't want to pay the taxes so they're getting marijuana from the black market. I don't know if it's really going to be that advantageous as far as bringing money into the state.

Brian: Roseanne, thank you very much. Mona, she raises two issues there. The taxation which maybe you've already addressed, but also fear of more reckless driving.

Mona: Like I mentioned, because the tax rate is going to be low in New Jersey, it does make it particularly competitive with the illicit market in a way that the California's regulated market does not. However, you do point out a really important issue with impaired driving and it's one of the biggest concerns among policymakers and advocates when it comes to discussing this issue of marijuana legalization because there just doesn't exist a test like an alcohol breathalyzer to test for impairment roadside when it comes to marijuana-impaired driving.

However, it will be down to the legislature to come up with a legislation that will address this issue. I see a lot of policymakers in other states really focusing on drug recognition experts. Basically training law enforcement to recognize cannabis impairment, right now seems to be the best solution to this issue in the absence of the technology of a breathalyzer for marijuana impairment.

Brian: Let's go to Ella in Maplewood. You're on WNYC. Ella, thanks for calling in.

Ella: Hi, thanks for taking my call. I am definitely in favor of legalization and feel that we've wasted a whole year because initially this was going to pass in the statehouse and it turned into a battle between state Senator Sweeney, the president of the Senate, and Governor Murphy, that has nothing to do with marijuana and everything to do with the battle for who was going to be the top dog in New Jersey politics. I think it's been a year delayed at this point.

Brian: Thank you very much. Why are you in favor? I gather you're in favor.

Ella: Oh, yes. I am in favor. I'm in favor because I think that it's being used anyway recreationally and we might as well collect the taxes on it. I'm not concerned about the driving impairment issue any more than I would be about drunk driving. I just think that it will be a beneficial tax to the state and it's something that people are doing anyway.

Brian: Thank you very much. I guess, Mona, in the context of New Jersey power politics having it on the ballot as a referendum bypasses what the caller accurately points out is the Steve Sweeney-Phil Murphy political turf battles.

Mona: Yes, absolutely. You do see marijuana reform across the board being driven by voters at the ballot box.

Brian: Five other states are considering either medical marijuana or recreational use on their ballots this year, that's Montana, South Dakota, and Arizona for recreational. Mississippi is looking to legalize medical marijuana for the first time. From your article, it says, "The biggest stakes are in New Jersey and Arizona where polling suggests voters will back recreational sales," but why do New Jersey and Arizona matter more than other places?

Mona: They're very populous states and if these measures pass, a third of the American population, over 100 million Americans, will be living in states with access to legal adult-use marijuana. It'll just further this federal-state conflict in marijuana laws that is already a problem but it's just going to increase the problem.

Brian: Let's take another call. Mike in Jersey City, undecided I think. Hey, Mike. You're on WNYC.

Mike: Hi, Brian. Thanks for taking my call. I just have a question regarding the banking rules in New Jersey restrict banking or, I should say, restrict the marijuana businesses from opening accounts in New Jersey. What's up with that? How would a business person be able to do that?

Brian: That's a great question. Mona, you've covered the banking issue, right? They've been able to just open legal business accounts if marijuana is still federally prohibited and maybe this is what gets us to the other thing that's going on right now which is this bill in the House of Representatives.

Mona: Yes, absolutely. Banking is one of the many issues for the cannabis industry as a result of this federal-state conflict. There's really not much that states can do on the issue of banking because it is federally regulated and big banks are just too scared to take the risk of serving a federally illegal industry. Going back to my point about the increase in the federal-state conflict with more states coming online with legal marijuana, it could push some federal lawmakers to support marijuana reform in Congress.

Really it's an act of Congress that would be required to resolve the banking issues or the tax issues facing state-legal cannabis businesses. The MORE Act, which is supposed to be coming up for a vote next week that would resolve the banking issues because it would remove marijuana from the list of federally controlled substances.

Brian: Tell us more about what they call the MORE Act. Why the word "more"? What does it mean? Do you know?

Mona: The MORE Act is a pretty comprehensive piece of marijuana legislation that includes community reinvestment and expungements which is really what Democrats want to focus on and promote this message of racial justice during this moment of reckoning on this issue. However, there is some talk, there is some worry from more moderate Democrats that it could look bad before the election because they haven't reached a coronavirus aid package and Republicans are really hitting Democrats for prioritizing marijuana legislation without a coronavirus deal. It really depends on what state you're in, what district you represent, but there is definitely overwhelming support for the MORE Act in the house.

Brian: Then it has to go to the Senate, Republican-controlled of course, any hope are there enough libertarians out there and enough Western states or something like that, to give Mitch McConnell a reason to say yes?

Mona: I don't think Mitch McConnell is going to come around to support marijuana legalization legislation anytime soon, to be honest. I think that as long as Mitch McConnell is the Senate majority leader, I don't think he would bring a marijuana bill up for a vote.

Brian: Don't look for the MORE Act to pass in this session. We'll see what might happen if Democrats win the Senate, which is a possibility, and if they're even enough Democrats to vote for it. I guess it would mean more indica, more Sativa, more gummies, the MORE Act in the house right now. More illegal bank accounts for illegal businesses, really. Let's take another call. John in Union County. You're on WNYC. Hi, John.

John: Hello. I am voting yes. My concern is, right now New Jersey has about 80,000-- I'm a medical marijuana cardholder. We have about 80,000 approved medical marijuana cardholders with 10 dispensaries. Most of them have shortages where they only have one indica, but that might not help with your conditions. There's only oil vapes, where they don't have flowers. There's a lot of shortages in New Jersey. Hopefully, if this is approved, they could work it out. There's 10 dispensaries and there's a big lawsuit that's held up opening of more dispensaries in New Jersey.

Brian: Shortages in medical marijuana, Mona.

Mona: This happens in a lot of states that have Medical Marijuana Programs and then legalize recreational because a lot of the medical marijuana producers want to serve the rec market. It's more lucrative to serve the rec market and that is often at a detriment to patients. I think it'll come down to lawmakers and regulators in terms of how they implement this initiative. There are some states that have done a pretty good job of protecting Medical Marijuana Programs after passing recreational initiatives.

Americans for Safe Access, which is a medical marijuana advocacy group, recently came out with their report on states and Oregon scored the highest out of all the states and they have a legal recreational market. It really comes down to the details of how they implement this and what protections they have in place for the Medical Marijuana Program.

Brian: Let's take another call. Phillip in Warren County. You're on WNYC. Hi, Phillip.

Phillip: Hi. How are you today?

Brian: Good. How you doing?

Phillip: Good. [unintelligible 00:19:45] be prerequisite by saying that I joined NORML 40 years ago in 1974. [crosstalk]

Brian: For people who don't know, that's the national organization for the reform of marijuana laws. NORML, a pro-legalization group. Go ahead.

Phillip: Yes. I have flipped on it in the last three or four years starting with this [unintelligible 00:20:08] legislation in New Jersey. It was just convoluted and messed up. The thing that really bothered me the most was, is it didn't allow me to grow my own marijuana for my own consumption. This is a real thorn in my side [unintelligible 00:20:24] I've been growing my own marijuana for over 20 years illegally and I don't like doing that, but I don't have a choice.

There's so much to cover in this subject that I can go to the multinationals grid, I could go to the tax grid. I could run the whole thing but I think when I get my ballot in the mail, I am actually undecided at this point. This is a 40-year warrior of reformation of marijuana laws.

Brian: Thank you to you--

Phillip: I'd like to hear what you guys have to say.

Brian: All right. Mona, are there restrictions here with regard to growing your own?

Mona: Again it'll depend on the bill that lawmakers pass to implement the legislation. The previous bill, as the caller mentioned, did not have home grow and I know that they are working off that bill as a template for the current bill. I think that there's going to be a lot of interests trying to influence this legislation. Of course, a lot of marijuana producers do not want to see home grow. It'll come down to, I'm sure a fight between lobbyists for cannabis industry interests and patient advocates and consumer advocates who want to see home grow in the legislation.

Brian: Really on a few of the things we've touched on, it seems that it's important to keep in mind that this referendum though binding, only would obligate the legislature to pass some recreational legalization bill. It doesn't say what kind. The issue of who gets to have the business franchises, whether any of that goes to underrepresented and over-prosecuted communities historically, whether home grow is legalized, other details would still be up to the lawmakers.

Mona: That's correct.

Brian: I want to touch on a little bit of your other reporting before you go. The Centers for Disease Control recently reported that more than 3/4 of patients with vaping related illnesses, reported using THC products, the main compound in cannabis. Any news on whether legal states are taking this news seriously and banning or differently regulating vaping as a delivery system? Of course, there are many ways to have cannabis. You can smoke it in the old fashioned way or vape it through a vaping system or edibles and tinctures and oils, the things that people have been mentioning.

We know that vaping has a whole category, including vaping of tobacco and other things like Juul, which are not cannabis, have come under such scrutiny recently. Are states taking this seriously and changing their legal weed programs to discourage or somehow limit vaping because of those health risks?

Mona: Yes. I think the vaping crisis which really started ramping up late last year, prompted a lot of marijuana legal states to revisit their vaping regulations. I don't think that it prompted a rollback of allowing vaping, but more stricter regulations like Oregon, for example, banned the use of non-cannabis derived flavoring agents in vape and vape products. It really brought to light for regulators this issue of people putting thickening agents or other types of additives in vaporizing products.

It didn't result in state regulators outright banning vaporizing products. Generally speaking, Massachusetts was an outlier in this respect. The other thing to know is that most of the vaping related lung injuries as they relate to THC, came from illicit sources of cannabis, informal sources of cannabis vapes, not the regulated market. I think marijuana advocates point to that as a reason for why regulating marijuana can provide safer products for consumers.

Brian: I'm glad you brought that up because that was going to be my follow-up question because I wasn't sure. I haven't looked at this issue since last year. There've been a few other things going on. When the lung vaping related lung illnesses broke, it seemed like I was seeing reports that said they were related to black-market cannabis and not to legal cannabis. Has that been firmly established?

Mona: Yes. That's definitely the case, generally speaking. There were a couple cases where investigators thought that there were some tie to the regulated market, particularly in Oregon, but pretty much the vast majority of the vaping illnesses were tied to informal sources of cannabis and not the legal regulated markets.

Brian: Mona Zhang covers the various states' marijuana legalization programs and issues. The hook, if you've just joined us in the middle, is that recreational marijuana legalization is on the ballot in New Jersey right now. Folks, get ready to make your decision on that, whatever it may be. I also want to mention that if you want to hear more from Mona, she's going to be at the CannAtlantic Conference presented by the Philadelphia Association of Black Journalists on Saturday next week. That's Saturday, September 26th. You can get more information at Cann. That's C-A-N-N like in cannabis. C-A-N-N-Atlantic.co What's going to happen at that? Is that a virtual event that anybody can see?

Mona: Yes, it's a virtual event. It's free. We were actually supposed to be doing it in person during the spring but, like every other conference, it's now going to be done via Zoom and I'm really looking forward to talking to other journalists and media people about covering cannabis.

Brian: Thanks for coming on with us. So informative.

Mona: Thanks so much for having me, Brian.

 

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