September 9, 2013
Pursuant to Elections Code Section 9005, we have reviewed the
proposed statutory initiative related to the use, possession, and sale
of marijuana (A.G. File No. 13‑0013).
Background
Federal Law. Federal laws classify
marijuana as an illegal substance and provide criminal penalties for
various activities relating to its use. While federal law allows the
importation, distribution, and sale of certain products derived from
marijuana plants (such as industrial hemp) if they are not intended for
human consumption (such as for clothing and animal feed), the
cultivation of marijuana for such products is illegal without a federal
permit. These laws are enforced by federal agencies that may act
independently or in cooperation with state and local law enforcement
agencies.
State Law and Proposition 215. Under
current state law, the possession, cultivation, or distribution of
marijuana generally is illegal in California. Penalties for
marijuana-related activities vary depending on the offense. For example,
possession of one ounce or less of marijuana is an infraction punishable
by a fine, while selling marijuana is a felony and may result in a
county jail or state prison sentence. The cultivation of industrial hemp
is also illegal in California.
In November 1996, voters approved Proposition 215, which legalized
under state law the cultivation and possession of marijuana in
California for medical purposes. Current state law also authorizes
cities and counties to regulate the establishment of medical marijuana
dispensaries in their jurisdictions. The U.S. Supreme Court ruled in
2005, however, that federal authorities could continue under federal law
to prosecute California patients and providers engaged in the
cultivation and use of marijuana for medical purposes. Despite having
this authority, the current policy of the U.S. Department of Justice
(DOJ) is not to prosecute marijuana users and businesses that act in
compliance with state and local marijuana laws so long as those laws are
written and enforced in a manner that upholds federal priorities. These
priorities include ensuring that marijuana is not distributed to minors
or diverted from states that have legalized marijuana to those that have
not. State and local governments currently collect sales tax on
medicinal marijuana sales.
Proposal
This measure legalizes the production, sale, and use of marijuana for
non-medicinal purposes, as well as legalizes the cultivation of
industrial hemp. Despite these changes to state law, these activities
would continue to be prohibited under federal law. Among other changes,
the measure also requires the regulation of the commercial production
and sale of marijuana, permits the application of an excise tax on the
sale of non-medicinal marijuana, and requires the release of individuals
currently in jail or prison or on probation or parole for marijuana
offenses legalized by this measure.
State Legalization of Marijuana-Related Activities.
The measure provides that no person or corporate entity could be
arrested or prosecuted for the possession, cultivation, transportation,
distribution, or consumption of various products derived from cannabis
plants, including marijuana and industrial hemp. The measure also
provides that the manufacturing, marketing, distribution, or sale
between adults of equipment or accessories associated with the above
products shall not be prohibited. In addition, the measure bars the use
of California law enforcement personnel or funds to assist in the
enforcement of federal laws relating to marijuana and provides that any
person who “threatens the enjoyment” of the provisions of this measure
is guilty of a misdemeanor.
While the measure generally permits the use of marijuana, it
authorizes the Legislature to impose standards restricting the use of
marijuana by persons operating a motor vehicle or heavy machinery, or
engaging in conduct that could affect public safety. Personal use of
marijuana products in enclosed or restricted public places could also be
regulated.
Regulation of Commercial Production. This
measure requires that commercial production of marijuana products for
recreational or religious use be regulated in a manner analogous to
California’s beer and wine industries. Commercial production of
marijuana is defined in this measure as the production of more than 99
flowering female marijuana plants and 12 pounds of dried, cured flowers
of marijuana. The production of a lesser amount is deemed personal use
and is exempt from permitting, licensing requirements, or taxation. The
measure limits the commercial production of marijuana products to
persons age 21 or older. The measure also requires that sufficient
community outlets must be licensed in order to provide “reasonable
access” to marijuana products consumed for recreational and religious
purposes.
Imposition of Fees and Taxes. The
initiative allows, but does not require, the Legislature to license and
impose fees on vendors who distribute marijuana products to persons 21
or older for recreational or religious use. A license or permit fee
could not exceed $1,000. In addition, the Legislature could place an
excise tax on the commercial sale of marijuana products of up to 10
percent of the retail price of the products. Such an excise tax would be
in addition to any sales tax. Under the terms of the measure, half of
any excise tax revenues collected from marijuana sales would support
research, development, or promotion of the industrial hemp,
“nutritional” marijuana (marijuana intended for consumption as food),
and medicinal marijuana industries in California. For industrial hemp
production, the measure prohibits any special zoning requirements,
licensing fees, or taxes that are “excessive, discriminatory, or
prohibitive.” This measure also prohibits the taxation of marijuana
products that are used for medical purposes.
Release of Current Marijuana Offenders. The
measure states that persons in prison or jail, or on parole or
probation, convicted under current criminal statutes for
marijuana-related activities made legal under this measure would be
released from custody. In addition, the measure requires the deletion of
marijuana-related criminal records for all persons who have been charged
with or convicted of legal violations related to marijuana products. The
measure also requires the California Attorney General to develop and
distribute an application form for qualifying individuals to seek the
destruction of such records upon the payment of a $10 fee.
Drug Tests for Past Marijuana Use.
Currently, some private businesses and agencies in California use drug
tests to detect current intoxication or past marijuana usage for the
purposes of making decisions about hiring or terminating employees.
Under this measure, such tests could only be considered if they are
limited to detecting current marijuana intoxication. Tests that are used
for purposes of determining insurance eligibility would similarly be
restricted to those that detect current intoxication.
Limits Zoning Restrictions on Medical Marijuana
Dispensaries. Currently, many cities and counties restrict
the locations where medical marijuana dispensaries can operate, and some
local jurisdictions have prohibited the establishment of dispensaries
altogether. This measure requires that sufficient community outlets be
allowed in order to provide people with “reasonable and discreet” access
to medical marijuana. This provision appears to limit the ability of
cities and counties to place restrictions on the establishment of
medical marijuana dispensaries.
Fiscal Effects
The provisions of this measure would affect both costs and revenues
for state and local governments. The magnitude of the these effects
would depend upon (1) the extent to which the U.S. DOJ exercises its
discretion to enforce federal prohibitions on marijuana activities
otherwise permitted by this measure and (2) how, and to what extent, the
state chooses to regulate and tax the commercial production and sale of
marijuana. Thus, the potential revenue and expenditure impacts of this
measure described below are subject to considerable uncertainty.
Reduction in Various Criminal Justice Costs.
The measure would result in reduced costs to the state and
local governments by reducing the number of marijuana offenders
incarcerated in state prisons and county jails, as well as the number
placed under community supervision (such as county probation). In
addition, the measure would result in a reduction in state and local
costs for the enforcement of marijuana-related offenses and the handling
of related criminal cases in the state court system. In total, these
reduced costs could be in the low hundreds of millions of dollars
annually.
Other Fiscal Effects on State and Local Programs.
The measure could also have fiscal effects on various other
state and local programs. For example, the measure could result in an
increase in the consumption of marijuana, potentially resulting in an
unknown increase in the number of individuals seeking publicly funded
substance abuse treatment and other medical services. This measure could
also potentially reduce both the costs and offsetting revenues of the
state’s Medical Marijuana Program, a patient registry that identifies
those individuals eligible under state law to legally purchase and
consume marijuana for medical purposes. In addition, the measure could
result in costs for the state to regulate the commercial production and
sale of marijuana. Depending on how, and to what extent, the state chose
to implement such regulations, these costs could potentially be up to
the low tens of millions of dollars annually. However, these costs could
be largely or entirely offset by license and permit fees levied on
marijuana-related businesses if the Legislature exercises its authority
to charge such fees authorized by the measure. Finally, the measure
could result in potentially minor state costs and potentially
significant local costs related to the destruction of criminal records.
Some or all of these costs might be offset by the $10 fee specified in
the measure.
Effects on State and Local Revenues. State
and local governments could receive additional revenues, such as sales
and excise taxes from marijuana-related activities allowed under this
measure. However, since the measure prohibits taxation on medical
marijuana products, these revenues would be partially offset by the loss
of sales tax currently collected on medical marijuana sales. The state
could also realize additional revenues to the extent that the
Legislature exercises its option under the measure to collect excise
taxes of up to 10 percent of the retail price of marijuana products. As
noted earlier, half of any excise tax revenues collected would support
research, development, or promotion of the medical marijuana,
nutritional marijuana, and industrial hemp industries in California.
In addition, the measure could result in an increase in taxable
economic activity in the state, as businesses and individuals producing
and selling marijuana and industrial hemp would pay personal income and
corporation taxes. Moreover, the measure could increase economic
activity in the state to the extent that out-of-state consumers redirect
spending into the state. The magnitude of the net increase in economic
activity is unknown and would depend considerably on the extent to which
the federal government enforces marijuana laws in California. In total,
our best estimate is that the state and local governments could
eventually collect net additional revenues in the low hundreds of
millions of dollars annually.
Reduction of Existing Fine and Asset Forfeiture Revenues.
The measure could reduce state and local revenues from the collection of
the fines established in current law for marijuana offenses and the
assets that are forfeited in some criminal marijuana cases. We estimate
that these revenues could amount to the low tens of millions of dollars
annually. This could be somewhat offset, however, by additional fine
revenue generated from the new misdemeanor penalty for persons who
threaten the enjoyment of the provisions of this measure.
Summary of Fiscal Effects
We estimate that this measure would have the following major fiscal
effects, which could vary considerably depending on future actions by
the federal government to enforce federal marijuana laws.
- Reduced costs in the low hundreds of millions of dollars
annually to state and local governments related to enforcing certain
marijuana-related offenses, handling the related criminal cases in
the court system, and incarcerating and supervising certain
marijuana offenders.
- Potential net additional tax revenues in the low hundreds of
millions of dollars annually related to the production and sale of
marijuana and industrial hemp, a portion of which is required to be
spent on marijuana-related research and other activities.
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