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The Impact – Tenth Anniversary of Legalization Vote on I-502  

Mike McClanahan profile by Mike McClanahan

Ten years ago Washington voters tested the limits of state sovereignty with an initiative to legalize one of the world’s most controversial plants.

With the passage of Initiative 502 in 2012, Washington became the first state in the nation to legalize the recreational use of cannabis by adults. (Colorado finished a very close second in the same election cycle.)

The state’s edgy pot policy track record began fourteen years earlier. In the November 3, 1998 general election, Washington voters approved Initiative 692 to permit the medical use of marijuana by patients with terminal or debilitating conditions with a doctor’s authorization and limited to a “60-day supply.”   I-692 passed 58.97% to 41.03% statewide.

The 1998 initiative didn’t explicitly legalize the possession or sale or cultivation of cannabis or prohibit related arrests, but it did create an affirmative defense against criminal conviction for qualifying patients and doctors. 

Medical cannabis dispensaries proliferated in Washington after I-692 although the initiative didn’t specifically authorize them.

Years later, the Washington State Legislature followed up with a bill to specify the amount of medical marijuana over which I-692 protections would not apply.

 A 2011 bill specifically authorized collective gardens for medical marijuana patients. 

Then in 2012, I-502 flipped over the game board by removing criminal penalties for the possession, sale, and production of cannabis for all drinking age adults while creating a licensing and regulatory framework that would apply to all cannabis operations. It established a DUI threshold for bloodstream THC levels, and authorized a limited number of business licenses for cannabis vendors and producers in the state. 

The head of the board that now regulates the state’s cannabis industry is an ex-reporter and former chief of staff to Governor Jay Inslee.

“Well, you know, really, that run up began years before when Washington state essentially decriminalized medical marijuana and there was this kind of gray market that had popped up. And wherever you were, you would see these they call them dispensaries or clinics. They were just stores in Thurston County. Here we had a lot. So you could go down certain streets and just see one after the other,” said David Postman, Chair of the Washington State Liquor and Cannabis Board.  “And it really was a gray area and nobody really knew what exactly, you know. Consumers didn’t really know exactly what those were. They didn’t know how to access it necessarily. None of them were regulated. So it was allowed, but it wasn’t regulated. And, you know, there’s varying opinions on how successful that was, whether it got cannabis into the hands of medical consumers who needed it most, or was it just a way to kind of get it into the hands of people legally for recreational purposes? So the ACLU decided to put forward an initiative to legalize recreational adult use cannabis.

Initiative 502 passed 55.7% to 44.3% statewide in the November 6, 2012 election.

“All these things happened on the ballot because legislators, politicians, are kind of behind the public on these sorts of moves. That’s just the way it is,” said Postman. “If you look back then, a lot of prominent politicians opposed cannabis. The governor at the time, Governor Gregoire, was not in favor. Governor Inslee, who went on to win his first term, the same election that 502 passed, opposed it. The attorney general who won, Bob Ferguson, opposed it. And yet they were the people charged on day one of their administration to implement 502.

“It was one of the biggest vote getters on the 2012 ballot,” said Postman.

I-502 established a state policy that conflicts with the federal prohibition on marijuana which still applies today.

“President Obama’s administration did not support legal cannabis in the states, and the states had to go to the Department of Justice and work right one-on-one with Eric Holder in some cases to be able to get an okay. And what Governor Inslee and Attorney General Ferguson were looking at was, how can we fulfill the mandate of the voters here, but not run afoul of the federal government?” said Postman. “We didn’t know if state workers who were working around this would be arrested or would we open a store and grant a license and that store would be instantly raided so we came up with some agreements. They put it in a memo that’s referred to as the Cole memo and these were the things the feds wanted us to agree to. Really, at the top of that list was traceability, was – how do we know that you’re not going to grow things at a farm in Okanogan County and sell it in Idaho or Oregon or wherever? We want to keep it within the state. We don’t want it in the illicit market. We don’t want it in the back of some guy’s trunk, you know, selling out of a parking lot. How do we do that? And so we had to build a really strict system and that’s one of the things that I think the LCB has done really well, but frankly it also shows the industry has worked very, very well on this.”

The state imposes a 37% excise tax on cannabis sales before local and state sales tax. According to the state treasurer’s office: cannabis revenue and license fees generated about $560 million for the state in fiscal year 2021, exceeding liquor revenues by about $287 million, based on data from the WSLCB’s FY 2021 Annual Report.

Check out the full interview to hear more about how some of the predictions about legalization have played out, the major focus with the current regulatory framework, and the mysterious spike in cannabis use by girls under 21.  

Follow us @TheImpactTVW on twitter for exclusive content, including WSLCB Chair David Postman’s take on the push to create additional opportunities for minority business owners to enter the state’s regulated cannabis industry.

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