For well over a year, New Jersey’s Democratic leaders have been trying to legalize and expand the use of cannabis in the state. Now that adult-use is all but certain to be on the 2020 ballot, and medical marijuana expansion is headed to Gov. Phil Murphy’s desk, experts are contemplating what comes next.
At an NJ Spotlight roundtable held last Friday in Somerset, two panels of experts discussed the next steps for medical marijuana expansion and why the effort for adult-use legalization failed so spectacularly. The discussion was moderated by NJ Spotlight Editor in Chief Lee Keough.
“I was sitting in the front row of that bus heading toward the legalization of marijuana for everyone 21 and over,” Fruqan Mouzon, former general counsel to the New Jersey State Senate Majority and chair of the cannabis practice group at McElroy, Deutsch, Mulvaney & Carpenter, LLP said of his time working on the (adult-use) recreational bill. After four years of work, however, he said he found himself “sitting on this bus with no seatbelt when it crashed and burned half a mile from the finish line.”
When that measure went up in flames, lawmakers quickly pivoted to expanding medical use as a backdoor to full legalization.
Just last week, lawmakers sent the governor a compromise medical marijuana plan that would increase the amount of product a patient could purchase to 3 ounces at a time, cut down on the number of doctor’s visits necessary before being recommended the drug, and phase out the 6.625 percent sales tax. It would also transfer responsibility for the program from the Department of Health to a five-member Cannabis Regulatory Commission under the Department of the Treasury — a controversial move Jeff Brown, Assistant Commissioner of the Medicinal Marijuana Program at DOH could not confirm.
Priorities for medicinal program
“Hypothetically,” Brown said at the roundtable, “if there was an agency transfer for medicinal marijuana, I think the number one priority above and beyond all else is to ensure that there’s no disruption for the patients.”
Brown said the program has grown substantially under the Murphy administration and is expected to reach 50,000 patients by the end of the month with 1,000 physicians participating. There are currently six dispensaries open and another six in the pipeline.
He said the previous restrictions on the program had kept New Jersey patients from being able to easily access their medication. According to DOH data, Brown said, in Colorado in 2015 patients were purchasing about 1.3 ounces per month whereas in New Jersey the average medical cannabis patient purchases about half an ounce per month.
“We found prices are artificially suppressing demand among the patient population,” he added. “Without a discount, the lowest price on the market now per ounce is about $350 … it goes all the way up to $500 per ounce.”
In the long term, Brown said, “given that it is a medical product, it is a treatment, we need to look at ways that insurance can get involved,” to help lower costs and expand access for patients.
However, the consensus was that might be a long way off. Cannabis is still an illicit drug at the federal level, meaning insurance companies, banks, and other national organizations dealing with multiple states are not likely to step into the field. Indeed, hospitals and nursing homes in the state and any facilities that rely on federal funding “are going to be hesitant to get anywhere near this,” Brown noted.
But small steps are being taken. Last week, the U.S. House of Representatives approved an amendment that would block the federal Department of Justice from interfering with state marijuana laws, including those allowing sales and recreational use.
If that measure — which is attached to an appropriations bill to fund the federal government for fiscal year 2020 — passes, it could clear the way for full legalization in New Jersey. And as Kelli Hykes, government relations director at Weedmaps, pointed out, there is a slim chance the state Legislature could pick up the adult-use bill again.
“It’s premature to call the bill dead; it definitely was involved in a fiery crash, but I think it’s probably more appropriate to say the bill is in a coma,” Hykes said.
Mouzon, however, who was in the room as that bill was being drafted, noted that there just aren’t the votes in the Legislature for it for a number of reasons.
Senators ‘were all over the place’
“I was in the room arguing with everybody,” Mouzon said. “There’s 40 senators and you’ve got to get 21 to say ‘yes’ and they were all over the place.”
Part of the problem, Mouzon said, was the bill just got too big and tried to legislate too much. By the end of the process, the measure had reached 300 pages and there were aspects in it that were “darned if you do, darned if you don’t” for some legislators. He said things like the setting up of consumption areas and expungement for possession of up to 5 pounds of marijuana tore lawmakers apart.
“If I put something in, I lose this guy; if I take it out, I lose this person. We just got into this situation where I was at 19 [votes], I was at 20, was at 18, I change this I was at 17, and we just couldn’t get 21 people to agree,” Mouzon said.
The solution to this problem in other states, Hykes said, is to break it down into digestible chunks. She worked on the measure in Illinois, which recently became the first state in the country to legalize adult use through legislation.
“The day that they passed the bill, they announced that there would be a trailer bill,” Hykes said. “They knew from the moment they passed that legislation that it was going to need continuous improvement and they were transparent about that and that is not a conversation that we saw in New Jersey.”
Progress or perfection?
“What we saw in New Jersey,” she said, “was perfection getting in the way of progress and we saw leaders that were very set in their ways in deciding what they wanted and the public process was not as open as it was in Illinois.”
Without the votes in the State House, the panel agreed the next step for legalization will likely be putting it on the 2020 ballot. But even that will not be easy. Hykes noted New Jersey does not have a set mechanism for ballot initiatives; instead, it requires that state constitutional amendments be put on the ballot.
Hykes said because constitutional amendments are so difficult to change (they require ⅗ of the Legislature to agree to any alterations or a simple majority in two consecutive legislative sessions), the language for the ballot question will be very broad and if it passes, the state will be right back where it is now: negotiating the same legislation, ironing out the details of the legalization plan.
Mouzon agreed. “The ballot question is going to be very simple. It’s going to be ‘are you in favor of freedom or are you in favor of prohibition?’ and then most people are going to vote ‘yes’ because it’s going to be designed for most people to vote ‘yes’ and once that’s done we’ll dust off this 200-page monstrosity that we dealt with and try to pass it. It will be totally different than it was the last time because now, a lot of the senators will have cover to vote yes.”
Not everyone agrees that legalization or prohibition are the only options on the table. Kevin Sabet, president of Smart Approaches to Marijuana, an anti-legalization group, spoke about his organization’s preferred method of decriminalization, followed by expungements to alleviate the outsized impact on communities of color.
Sabet said more research into the effects of marijuana on the body and economy are necessary to ensure that driving conditions remain safe, any harmful reactions including psychosis and dependency are reduced, and out-of-state investors don’t flood the New Jersey market.
Ultimately, however, the experts agreed it is highly likely that adult-use legalization will be on the ballot in 2020 and, as Mouzon noted, it is also likely to pass.