I recently moved to Washington DC to join our East Coast practice group and was inundated with inquiries about the legal framework for recreational cannabis (i.e., marijuana and hemp) in the country’s capital. Given this overwhelming interest, I thought I would briefly recap this topic for our readers.
In November 2014, DC residents overwhelmingly voted in favor of Initiative 71, an election that legalized the possession and cultivation of small amounts of marijuana by residents 21 and older.
However, a few weeks after the marijuana polling initiative was passed, Republicans in Congress attempted to repeal the law by including a driver in the Consolidated and Further Continuing Appropriations Act of 2015, which prohibited the district from having any means of passing taxation laws Regulating marijuana use. Under federal law, Congress reviews all laws passed by the council (think of them as the equivalent of DC’s state legislature) and all voter-approved referendum measures before they become law. In addition, Congress retains authority over the district budget. Generally, when Congress wishes to influence district affairs it does so through changes to unrelated laws such as expense accounts.
Still, district officials, including Attorney General and Mayor Muriel Bowser, said the Congressional driver would not prevent the legalization of marijuana, which was enacted and certified by the electoral board before Congress passed the spending bill.
As a result, the district inherited a “gray market” where local businesses operate a “gift economy,” which consists of selling non-marijuana items at set prices and offering marijuana as a complementary gift for the transaction. This legally questionable business practice arose from a provision in Initiative 71, according to which it is lawful for persons 21 and over to “transfer up to one ounce of marijuana to another person 21 and older without pay (but not for sale)…. “
While there have been no more marijuana-related arrests in the country’s capital (a particularly good thing given a 2013 report by the American Civil Liberties Union found that DC has one of the highest arrest rates of blacks in any county in the country 9 times more arrested than whites), the district has faced an unregulated, legally dubious market where the commercial sale of marijuana is illegal.
To address this ongoing issue, district lawmakers recently introduced the Comprehensive Legalization and Regulation of Cannabis Act of 2021, a comprehensive bill that, when passed in its current version, will provide a comprehensive legal framework for the manufacture and sale of Recreational marijuana would create, but also fight social justice by repairing the damage done by law enforcement in the past, investing in the communities hardest hit by the drug war, and providing equitable access to the new market. No action has been taken since the law was introduced on March 1.
The district has not yet enacted any laws or regulations related to hemp, which means it does not approve or regulate the production of hemp or hemp products, including the sale of cannabidiol (CBD). Hence, despite the notable presence of “CBD stores” across town, these products are not legal.
Overall, the commercial sale of recreational cannabis products is expressly prohibited in the district. This means that the vast majority of “gifted” products sold in the city are unregulated and therefore potentially unsafe for human consumption. While these activities appear to be largely tolerated, they nonetheless put local businesses at risk through enforcement action by local and federal agents. Think about it before venturing into this market.