OREGON HAS LEGALIZED! An overview of Measure 91

November 6, 2014

On November 4, Oregon’s Measure 91 passed the popular vote by 57% to 43%, making Oregon one of only 4 US states to end cannabis prohibition! This is a historic time, and represents an intelligent and progressive change in public policy. Not only is cannabis one of the most medically useful plants known, but it is also safer than alcohol, and its legalization has positive impacts on public health. In other states that have legalized the use of cannabis by adults in some form, traffic fatalities have decreased, cannabis use by teens has not increased, and the rate of death from opioid pain killer overdoses has fallen. Hopefully, this marks the beginning of the end of our nation’s policy of cannabis prohibition.


As exciting as this is, if you live in Oregon, don’t run out into the streets to smoke it up in celebration just yet! For one thing, the public consumption of cannabis is not allowed under Measure 91. Additionally, the portions of Measure 91 that legalize the use of cannabis don’t take effect until July 1, 2015. Until that time, Oregon’s decriminalization laws still apply, meaning that possession of less than one ounce of cannabis is still a misdemeanor punishable by a maximum $650 fine.


Measure 91 establishes large possession limits for adults aged 21 and older, compared to other states that have fully legalized cannabis. Starting on July 1, 2015, adults aged 21 and over will be able to possess the following amounts of cannabis in the following forms: 8 ounces (one half pound) of usable cannabis flowers, limited to carrying 1 ounce in public; 16 ounces (one pound) of marijuana products in solid form (e.g., edibles – you could have a pound of cookies); 72 ounces of cannabis products in liquid form (e.g., cannabis-infused soda – this is a volume equivalent to a six pack of beers); and 1 ounce of cannabis extracts (e.g., CO2-, butane-, or alcohol-extracted hash, wax, or shatter).


One important note is that under Measure 91, homemade cannabis extracts (such as wax or shatter) are prohibited: no person may produce, process, keep, or store homemade marijuana extracts. Adults are allowed to possess up to 1 ounce of cannabis extracts, but only if they are procured from a licensed cannabis retailer. Specifically, the law bans the home production of extracts through the use of solvents such as CO2, butane, hexane, and alcohol. However, Measure 91 explicitly allows adults to infuse glycerin with cannabis. Unfortunately, glycerin is a poor solvent for cannabinoids. Because of the way this section of the law is written, it seems likely that making cannabis-infused olive oil or butter would probably also be allowable, especially since adults are allowed to make their own edibles at home.


Currently, the text of Measure 91 creates a bit of a gray area around homemade cannabis extracts. Because it defines marijuana extracts as those made with solvents, the case can be made that mechanically created concentrates, like kief or bubble hash, can legally be made at home. The process of making kief, certain kinds of hash, and bubble hash involve using mechanical processes, like sifting and agitation, to remove the cannabinoid-rich trichomes from the cannabis plant. These processes create concentrated cannabis products that can be as strong as solvent-based extracts, without the use of solvents, and are therefore likely to be allowed under the law.


In addition to establishing legal personal possession limits, Measure 91 also allows adults aged 21 and over to cultivate up to 4 cannabis plants of their own, as long as the plants are not visible from a public space. Growing four cannabis plants in a fenced back yard is probably fine, if people can’t see over or through the fence from the street; growing them in planter boxes on your front porch is almost certainly not allowed. (Section 56)


It is important to understand that these cultivation limits apply not only to individuals who are over the age of 21, but also to their households. If three adults over the age of 21 live in the same house and all want to cultivate cannabis, they cannot each grow 4 of their own plants, for a total of 12 in the household; they are limited by the law to cultivating a total of 4 plants in the household. In the same manner, the possession limits outlined above apply to homegrown usable cannabis, and to products such as edibles made at home from homegrown cannabis. So a single household is limited to possessing 8 ounces of usable homegrown cannabis, 16 ounces of solid marijuana products made from homegrown cannabis, and so on.


Measure 91 has done more than merely legalize the home cultivation of cannabis for adults: it has also directed the Oregon Liquor Control Commission (OLCC) to create and regulate a system of commercial cannabis cultivators, process, and retailers. The OLCC will have until January 1, 2016 to create the forms, applications, and regulatory structure necessary to implement this initiative. Three days later, on January 4, 2016, the OLCC is required to begin accepting applications for retail cannabis businesses licenses. This means that the soonest retail cannabis business can be expected to be operational is within the first half of 2016.


Under Measure 91, Oregon will tax retail cannabis less stringently than have other states, like Washington. This new law imposes an excise tax on retail cannabis that is to be paid by the producers: there will be a tax of $35 per ounce of flowers sold; $10 per ounce of leaves; and $5 per immature plant sold for home cultivation.


This Measure allows for 4 types of licensed cannabis businesses: producers, who will cultivate retail cannabis; processors, who will buy cannabis from producers and convert it into other marijuana products, like supercritical CO2 wax and shatter; retailers, who will buy marijuana and marijuana products from producers and processors to sell to consumers; and marijuana wholesalers, who will be licensed to purchase cannabis and related products to sell to retailers and other non-consumers.


This last type of business would be a new kind of middleman business in the cannabis industry that has never before been implemented in another state. It may prove to be redundant, since dispensaries usually handle their own purchases of these kinds of items directly. However, with a bit of creativity, innovative entrepreneurs may be able to carve out a unique niche for this new type of cannabis business.


Overall, Oregon’s Measure 91 is an amazing step forward in public policy. The end of cannabis prohibition in Oregon represents a great development for business opportunities and improvements in public health and safety. There are also some less well-known aspects of Measure 91 that make it an important piece of law. One important aspect of this act that has fallen to the wayside in other discussions is that it also requires the creation of regulations and licensing for industrial hemp and hemp seed production in Oregon. Hemp a highly sustainable and useful source of fiber and nutrition, and is a massively underutilized natural resource due to its classification as a Schedule 1 drug by the Federal government. Now Oregon will be one of the only states to fully utilize the industrial, medical, and recreational properties of the amazingly useful cannabis plant.


On an interesting final note, Measure 91 provides an affirmative defense for the growth, possession, and use of peyote. (See section 76(4) of the full text of the law). This aspect of the law takes effect on December 4, 2014. Basically, an affirmative defense is a portion of the law that outlines a set of conditions; if you can prove in court that you meet the conditions of the affirmative defense, then you are not guilty of the crime with which you are charged. One of the most well known affirmative defenses is an act of self defense in cases of what would otherwise be considered assault. Measure 91 creates an affirmative defense for the cultivation and use of peyote in religious practices, in connection with religious belief, and in a manner that is not harmful to the health of the user or to those around him. Overall, it seems that Oregon has determined prohibitionist policies to be detrimental, and have chosen to take a new path.


Congratulations Oregon!