The Marijuana Advisory Commission that Governor Phil Scott created to study some of the crucial issues facing the state due to the potential legalization of marijuana met for the first time on Thursday, September 28. The commission’s three major areas of focus include highway safety, tax and regulation, and the implementation of education and prevention programs.

Once the meeting began, it was clear that the question was not whether legalization would occur, but rather when and how.

Commissioner of Taxes, Kaj Samsom, clarified this further by saying, “ It seems to me, and I just want to clarify for all of us and for the co-chairs of the commission, that this is not a study of whether to have legal marijuana, it’s a how-to.” Samson is serving as chair of the advisory commission’s taxation and regulation subcommittee.

In order to fully understand why this commission was created, it’s important to take a look at the chronology.

In 2004, Vermont legalized medical marijuana. In 2013, Vermont decriminalized possession of an an ounce or less. And just this year, the Vermont House and Senate tried to push things further, using Washington D.C.’s regulatory model, known as Initiative 71. This model states that an individual 21 years of age and older can possess up to two ounces of marijuana for personal use, and can grow up to six cannabis plants (up to three mature at a time) at their place of residence.

Initiative 71 also allows for gifting or transferring up to one ounce of marijuana to another person, also 21 years of age or older, but specifically excludes sales. In addition, it also legalizes marijuana use on private property only, not on public or federal property.

Although this model did not address retail sales or taxation, it was viewed as a possible roadmap for Vermont. Consequently, a bill known first as S.22, which was sponsored by Senator Dick Sears, and then as H.170, sponsored by Rep. Maxine Grad, Rep. Charles Conquest, and Rep. Thomas Burditt, was drafted.

S.22 would have allowed possession of up to an ounce of marijuana, as well as personal cultivation of up to four cannabis plants, two mature and two immature per household in the state of Vermont. Just like D.C.’s Initiative 71, this legislation did not create a regulatory system for retail sales or taxation but was regarded by many in the Legislature as a good first step. Although passed by the full legislature, Gov. Scott sent the bill back on May 24, 2017 for reworking, reintroduced as H.511. On June 21, 2017, a special session renewed action on the bill. Again, the Senate passed the legislation, but a refusal to suspend chamber rules by House Republicans stopped further discussion, effectively delaying action on the bill until January 2018.

Representative Maxine Grad, a democrat from Moretown and chair of the House Judiciary Committee, has been working with Senator Sears to help lead the negotiations. Although disappointed with the initial outcome of the special session, she is excited to join the marijuana advisory commission. When asked what was her motivation to join or accept a position on this commission, she said, “As Chair of the House Judiciary Committee I have worked in depth on cannabis legislation. I will bring my knowledge to the table and help craft the best policy for Vermont. I am very familiar with much of the literature/studies that are being used on both sides of the issue and can help the Commission identify those that are reliable and data driven.”

When Governor Scott announced the creation of the commission, he recognized that legalization was an issue that wouldn’t be going away anytime soon. Stating, “It’s happening all around us with Massachusetts, Maine, Canada. It’s certainly forming around us. I just think it’s imperative that we stay ahead of the curve as best we can.”

Why does there seem to be a delay in the legalization of marijuana in the state of Vermont? The governor feels very strongly that there are many instances and situations in which health and safety could be potentially at risk. His stated position is that he wants to learn more in order to present a clear and confident picture of what Vermont could look like should marijuana be legal, both medicinally and recreationally.

There are others on the commission who feel much the same way. Dr. Jill Rinehart, a pediatrician and President of the Vermont chapter of the American Academy of Pediatrics, has been a staunch legalization opponent throughout the debate. She has spoken with colleagues in states like California and Colorado, and has expressed concerns regarding patient safety and whether cannabis legalization may compromise public health and safety. One thing is for certain, Dr. Rinehart is anxious to voice the concerns of those who share her position in the health and safety discussion.

“We learned this morning though too that the results of whatever happens with this commission have to show a net result in improved public safety,” Rinehart said. “And how you do that … will be sort of my role here on the commission, to hold them to that task.”

Although not addressed in the initial advisory committee meeting, highway safety is one of the most important issues Gov. Scott hopes to address. Currently, there are no scientifically-supported roadside tests to determine levels of impairment due to cannabis use. While detecting alcohol in a driver’s system is a comparatively simple process, as we know how it metabolizes in the body and approximately how long the effects last, detecting marijuana is much different. Marijuana can linger in the system for hours, even days. Metabolization also varies from person to person, making any confident determination almost impossible.

Gov. Scott would like the committee to look at this issue and determine some way to set a level of impairment, as well as the best way to determine if someone is under the influence of marijuana. Right now, there are approximately 40 drug recognition experts (DREs) in Vermont. It is unclear, at this point, whether or not their expertise will be requested at any point in this study, although the governor has acknowledged that perhaps more DREs will be helpful in the future.

The issue of regulation and taxation has become increasingly important as farmers around the state have begun to recognize the potential benefits of cultivating hemp and cannabis as cash crops. Secretary of Agriculture, Anson Tebbetts, is a member of the advisory committee who represents the voice of the farmers. When speaking about the potential stake farmers have in this discussion and the role they could have to play, he said, “I would encourage all our farmers to pay attention to this discussion, because from what we’ve heard today, we’re not debating if it’s going to happen — it’s when and how it’s going to look.” He went on to say, “They do have the land; they do have the infrastructure. They know how to grow things and they know how to sell things.”

So what does this mean for the future of legalization? The public will undoubtedly learn more as the discussion unfolds through the advisory commission’s work. Even if lawmakers legalize both possession and cultivation in 2018, a proper regulatory system is unlikely to develop concurrently, due in part to the fact that the advisory committee will not present its final report to the governor until December 2018.

When Representative Grad was asked how the Governor’s marijuana advisory commission could affect the prospect of the 2018 debate, she said, “H.511 will be up for action when we return. That bill is very similar to H.170 in that it legalizes adult possession of one ounce of cannabis and the cultivation of a few plants. The Commission’s work will inform this debate. I will advocate that action of H.511 should happen separate from the work of the Commission.  Legalized states started with laws similar to H.511. Washington, DC has a similar model.  As a matter of drug and criminal justice policy, H.511 is an important first step. H.511 does have a commission in it that is most likely not needed. Likelihood of passage? I am optimistic that H.511 will pass.”

Senator Sears is also anxious to come to a consensus on legalization, as well as the creation of a feasible regulatory system. “I want to see a taxed and regulated system as soon as possible, if we do legalize,” he said exuberantly. He recognized the importance of staying current with both Maine and Massachusetts, both of whose commercial marijuana markets will open in July 2018.

It appears that an increasing number of voices in the Scott administration are beginning to accept the political realities and constituent pressures to move forward with an effective plan for legalization. The task now at hand is to pursue a thoughtful approach that considers the diverse range of legalization impacts, while navigating towards a positive outcome for cannabis supporters and Vermont’s broader set of stakeholders.