- Posted by Ellie Perka
- On March 23, 2018
Washington was one of the first states to legalize adult recreational marijuana use with the approval of Washington Initiative 502 (I-502) on November 6, 2012. At that time, only Colorado had legalized the recreational use of marijuana. While it was legalized years ago, retail sales did not begin until 2014 and licenses are still difficult to obtain. Retail marijuana sales is a multimillion-dollar industry in our state, and growing exponentially. Many believe that recreational marijuana use will be even more common in the upcoming years. This is the first of a two-part article exploring the laws surrounding marijuana, its growing use in Washington, and its impact on the construction industry.
Washington’s Initiative 502
I-502 appeared on the November 2012 general ballot in Washington, passing by a margin of approximately 56 to 44 percent. Originally submitted to the Washington Secretary of State during the summer of 2011, enough signatures were collected and submitted by December 2011 to meet the required 241,153 signatures to place the initiative on the ballot. Voter turnout was 81%, the highest in the nation at that time. I-502 contained no language modifying well-established Washington State employment law, which allows for a drug-free workplace and for employee drug testing. In fact, I-502 does not provide any protection for employees who use marijuana.
I-502 was groundbreaking as it legalized small amounts of marijuana-related products for adults 21 and over. It allowed the products to be taxed and designated the revenue for healthcare and substance-abuse prevention and education. As noted at RCW 69.50.101, cannabis is still classified as a schedule I controlled substance under federal law and subject to federal prosecution under the doctrine of dual sovereignty. Possession by anyone younger than 21, possession of larger amounts, and the growing of unlicensed or unregulated marijuana remains illegal under Washington state law.
Implementation of I-502 proved difficult. It has taken many years to execute, especially for retail operations to become established. Washington handed out grower licenses more quickly than retail licenses, creating an imbalance in supply between farms and stores and it was difficult to obtain the licenses to open a marijuana store.
According to the Washington State Liquor and Cannabis Board, there now exist 1,442 licensed marijuana producers, 1,551 licensed processors, and 756 licensed retailers in our state. Most retail licenses were issued in the last several years, meaning that legalized marijuana use in Washington has only just started to take hold. In 2015, retailers in King County reported $48 million in total sales of marijuana. In 2016, that number had exploded almost three times, to $151 million. The total retail sales of marijuana in Washington state was over $501 million in 2016. In 2015, retail sales were at $179 million—showing staggering growth in this industry.
The Path to I-502
Prior to I-502, Washington was already on the forefront of legalizing marijuana. Washington legalized marijuana for medical purposes as early as 1998 with the passage of Initiative 692. This early Initiative created an affirmative defense to the violation of state laws relating to marijuana used and possessed for medicinal purposes. It permitted qualifying patients or their designated primary caregivers to possess a small amount of medical marijuana, i.e. only the amount of marijuana necessary for their personal use, up to a 60-day supply, if they presented valid documentation from a physician.
In 2007, the Legislature enacted SB 6032, which directed the Washington Department of Health to adopt rules defining a presumptive quantity for a 60-day supply of marijuana for medicinal use. The law also expanded the health conditions for which marijuana use may be authorized, and revised the parameters of the documentation required from physicians.
In 2010, the Legislature further expanded the list of professionals who may authorize the use of marijuana for medicinal purposes to include all licensed health care professionals who have prescribing authority, i.e., physicians, osteopathic physicians, physician assistants, osteopathic physician assistants, naturopaths, and advanced registered nurse practitioners with SB 5798.
In 2011, the Legislature established a regulatory system to license the production and distribution of marijuana intended for medicinal use. The law also created a voluntary patient registry in which qualifying patients and designated providers could enroll and receive protection from arrest and prosecution. Many portions of the bill were vetoed because of concerns regarding potential federal prosecution of state employees engaged in the activities necessary to license marijuana production and dispensing facilities. The authorization for patient home grows and collective gardens was not vetoed, that provision gave rise to the statewide expansion of an unregulated gray market, which eventually had to be reconciled with the comprehensive regulatory structure created by voter approval of Initiative 502.
Marijuana Usage—is it increasing?
Historically, research has shown that the availability of legalized, recreational marijuana had little to no effect on teenagers’ propensity to smoke marijuana. A study released in December 2016, however—analyzed the impact of I-502 on teenagers in Washington state—arrived at a different conclusion.
The study, published in the leading medical journal, JAMA Pediatrics, examined marijuana use among high school students in Washington two years before and after I-502 was approved by voters. It studied and compared the prevalence of marijuana use from 2010-2012 (before I-502) and from 2013-2014 (after I-502 was enacted). The study found that the rates of marijuana use increased (but only by 3%) among 8th and 10th graders.
The researchers posited that reduced stigma about marijuana use—via the passage of I-502—was a factor leading to the increase in marijuana use. “Our study suggests that legalization of marijuana in Washington reduced stigma and perceived risk of use,” said lead author Magdalena Cerdà of the University of California in Davis, “which could explain why younger adolescents are using more marijuana [in Washington] after legalization.”
Part Two Preview
A reduction in the stigma around marijuana use could have a significant impact on the construction industry. Irrespective of the arguments in favor of, or against marijuana usage, its use in the workplace undoubtedly raises safety concerns in the construction industry. Construction jobsites are inherently dangerous places to work and construction employees are responsible for tools and machinery that can cause serious injuries. Part two will explore how courts across the country have analyzed employee-marijuana use and how those in the construction industry can respond to the shifting laws in this area.